WHO’S IN CHARGE HERE? 

EFFECTIVE IMPLEMENTATION OF CANADA’S INTERNATIONAL OBLIGATIONS WITH RESPECT TO THE RIGHTS OF CHILDREN


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

A.  IMPLEMENTING THE CONVENTION

Government and academic witnesses, as well as those representing children’s rights advocacy organizations across Canada testified before the Committee with respect to Canada’s implementation of the Convention.  Their evidence and recommendations were supplemented by information obtained from various UN and international organizations in Geneva, including the Committee on the Rights of the Child, as well as examples of how the Convention operates in like-minded nations, such as Sweden, Norway, and the United Kingdom.  Finally, the Committee heard from young people in Atlantic Canada and abroad as to their perspectives on the Convention on the Rights of the Child and its impact on their lives.

One fact made clear to the Committee throughout its hearings was that the primary obstacle to effective protection of children’s rights in Canada is the lack of mechanisms for implementation of the Convention.

 

     1.  Implementation and Application

Canada signed the Convention on the Rights of the Child on May 28, 1990 and ratified it on December 13, 1991.  The Convention came into force in Canada on January 12, 1992.  Article 4 of the Convention requires States Parties to take “all appropriate legislative, administrative, and other measures” for the realization of the rights of the child.

In line with its usual approach to international human rights treaties, government witnesses told the Committee that the federal government did not adopt specific or global enabling legislation to introduce the Convention into domestic law.  Instead, prior to ratification, the government entered into a consultation process, reviewing and analysing existing laws across Canada to determine whether any new laws or amendments were needed to ensure conformity with the treaty.  After some adjustment, the government appeared satisfied that the Convention could be 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.[120]  Witnesses such as Irit Weiser and John Holmes in 2001, and the Honourable Irwin Cotler in 2005, informed the Committee that implementation of the Convention in Canada is essentially based on a recognition that a variety of laws across Canada work together to comply with Convention obligations and ensure the protection of children’s rights.  This is because children’s rights and issues cut across all jurisdictions – from child protection and family law, which are mostly under provincial jurisdiction; to immigration and criminal law, which are under federal jurisdiction.  As stated by Minister Ken Dryden, “putting the Convention into action is not the work of any one department or agency.  Rather, it cuts across all Government of Canada departments, across governments at every level and across society.”[121]

This policy-based approach to Canada’s international obligations has led commentators such as Jeffrey Wilson, Kathy Vandergrift of World Vision Canada, Jean-François Noël of the International Bureau for Children’s Rights, lawyers at Justice for Children and Youth, and the Canadian Council of Provincial Child and Youth Advocates, to argue that Canada is not in full compliance with the Convention.[122]

What is clear is that although the federal government ultimately determined that Canadian law was in conformity with the Convention on the Rights of the Child, it nonetheless faced jurisdictional obstacles in arriving at this conclusion.  Witnesses such as Professors Nicholas Bala and Katherine Covell, as well as Rita Karakas of Save the Children Canada and Bernard Richard, Ombudsman for New Brunswick, noted these complexities.  While all provinces may have legislation that conforms to the principles outlined in the Convention, they often approach those standards through different frameworks.  The vast array of laws, as well as the differing interpretations of or approaches to them in each province and territory add to the task of those determining whether Canada’s laws are in compliance with its international obligations.

An example of the coordination hurdles inherent in the ratification process is evident in Canada’s position with respect to the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.  Although the federal government ratified that Protocol in September 2005, the fact remains that nearly 4 years elapsed between signature and ratification.

 

     2.  Statutory and Judicial Interpretation

Despite the lack of specific enabling legislation in Canada with respect to the Convention, witnesses pointed out that, in addition to its application through various human rights and other legislation, the Convention has another means of influencing Canadian law.  International law, including the Convention on the Rights of the Child, can be used by the courts and other decision-making bodies as an aid to interpreting legislation affecting children’s rights in Canada.  Witnesses such as the Honourable Irwin Cotler and Suzanne Williams of the International Institute for Child Rights and Development told the Committee that there is a common law interpretive presumption that any legislation adopted in Canada is consistent with its international legal obligations, even if not explicitly implemented in domestic law – the presumption is that Parliament intended to legislate in a manner consistent with these obligations.[123]  Although it must be kept in mind that this perspective is only occasionally argued or used in the courts.

The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration)[124] is one of the leading decisions in Canada on the influence of international law on domestic obligations, even where the international instrument in question has not been explicitly implemented in Canadian law.  With reference to the Convention on the Rights of the Child, the court cited a passage from Driedger on the Construction of Statutes:

[The] legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[125]

 

            The majority of the court in Baker ruled that although Canada had not incorporated the Convention on the Rights of the Child into domestic law, the Convention’s guiding principle making the best interests of the child a primary consideration in decision-making concerning children should have played a role in the government’s decision-making process in this particular instance.  The court cited the important role of international human rights law as a “critical influence on the interpretation of the scope of the rights included in the Charter”.[126]  Minister Cotler reiterated case law on the issue during his appearance before the Committee, affirming that international law is a “relevant and persuasive authority with respect to the interpretation and application of our legislation.”[127]  Testimony before the Committee from outside Canada, such as Scotland’s Commissioner for Children and Young People, Kathleen Marshall, who observed the “creeping authority”[128] of the Convention in domestic law, could just as easily apply at home.  She noted that in Scotland, the Convention is achieving a higher domestic profile through “the back door.”[129]

However, witnesses emphasized that although international human rights norms have a role to play domestically, it is still a secondary one.  International law is a consideration in the judicial decision-making process, but ultimately, the values reflected in international instruments that are not implemented in domestic law only help to inform the contextual approach to statutory interpretation.[130]  While international law may be used to determine matters related to public policy, its effect on domestic law is restricted to “elucidation of Parliamentary intent.”[131]  Even in Baker, the Supreme Court emphasized the persuasive, rather than the obligatory, force of the Convention.[132]  As stated by Jean-François Noël,

Despite a certain degree of openness by the Supreme Court of Canada to relying on the Convention on the Rights of the Child for interpretation purposes, it nevertheless remains that, as long as the Convention on the Rights of the Child has not been incorporated in domestic law, it will not have force of law, and compliance with its principles will be subject to the laws in effect in Canada.[133]

            Because the Convention on the Rights of the Child has not been incorporated into Canadian law, it cannot be used as the direct basis for any claim.  Irit Weiser clarified this point in her testimony before the Committee in 2001:

If someone felt that Canada was violating a particular article of that Convention, they could not start an action in Canadian courts based on that particular article of the Convention.  They could try to find something in our Charter or some other piece of legislation and argue that the convention affects the interpretation of the domestic law or of our Charter and amounts to a violation, but they cannot start their court action based on the treaty alone.[134]

 

     3.  Reservations

Witnesses both in Canada and Geneva provided the Committee with information about Canada’s reservations and status with respect to the Optional Protocols to the Convention on the Rights of the ChildCanada filed two reservations and a statement of understanding with respect to the Convention’s applicability in Canada as a result of the consultation process that took place prior to ratification. 

 

a)  Article 21 – Customary Care

            The first of these reservations and the statement of understanding concern article 21 of the Convention, which refers to domestic and inter-country adoption.

Reservations

(i) Article 21

With a view to ensuring full respect for the purposes and intent of article 20(3) and article 30 of the Convention, the Government of Canada reserves the right not to apply the provisions of article 21 to the extent that they may be inconsistent with customary forms of care among aboriginal peoples in Canada.


Statement of understanding

 

Article 30

It is the understanding of the Government of Canada that, in matters relating to aboriginal peoples of Canada, the fulfilment of its responsibilities under article 4 of the Convention must take into account the provisions of article 30.  In particular, in assessing what measures are appropriate to implement the rights recognized in the Convention for aboriginal children, due regard must be paid to not denying their right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion and to use their own language.

 

            John Holmes from the Department of Foreign Affairs told the Committee in 2001 that the government adopted this approach to article 21 in order to ensure that recognition of customary adoption among Aboriginal peoples in Canada was not precluded by the Convention requirement that adoptions be authorized by competent authorities, in accordance with applicable laws and procedures.[135] 

 

b)  Article 37(c) – Detention of Young Offenders in Separate Facilities

The second reservation concerns article 37(c), which deals with the youth criminal justice system, requiring States Parties to detain young offenders in separate facilities from adult offenders.

Reservations

(ii) Article 37(c)

The Government of Canada accepts the general principles of article 37(c) of the Convention, but reserves the right not to detain children separately from adults where this is not appropriate or feasible.

 

            The government adopted this reservation for a number of reasons.  The first was to provide some leeway for remote Northern communities in Canada, where building separate facilities for a small number of young offenders is often impractical and costly, and where putting a child in a separate facility often involves sending him or her a great distance from the family.  The government was also concerned about avoiding the situation in which a child who turns 18 during his or her term of incarceration must suddenly be moved into an adult facility.  Finally, the government was concerned about incarcerating young children with more dangerous youth offenders. 

However, despite these justifications, Canada has been criticized by the Committee on the Rights of the Child, and by numerous witnesses such as Professors William Schabas at the Irish Centre for Human Rights (National University of Ireland) and Peter Leuprecht, for its unwillingness to withdraw its reservations and conform to international standards in these regards.

 

c)  Art. 3(2) of the Optional Protocol on the Involvement of Children in Armed Conflicts

Upon ratifying the Optional Protocol, Canada made the following declaration concerning article 3(2), which requires States Parties allowing voluntary recruitment to the national armed forces for children under 18 to put specific safeguards in place:

Declaration:

Pursuant to article 3, paragraph 2, of the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts, Canada hereby declares:

1. The Canadian Armed Forces permit voluntary recruitment at the minimum age of 16 years.

2. The Canadian Armed Forces have adopted the following safeguards to ensure that recruitment of personnel under the age of 18 years is not forced or coerced:

(a) all recruitment of personnel in the Canadian Forces is voluntary. Canada does not practice conscription or any form of forced or obligatory service. In this regard, recruitment campaigns of the Canadian Forces are informational in nature. If an individual wishes to enter the Canadian Forces, he or she fills in an application. If the Canadian Forces offer a particular position to the candidate, the latter is not obliged to accept the position;

(b) recruitment of personnel under the age of 18 is done with the informed and written consent of the person's parents or legal guardians. Article 20, paragraph 3, of the National Defence Act states that 'a person under the age of eighteen years shall not be enrolled without the consent of one of the parents or the guardian of that person,

(c) personnel under the age of 18 are fully informed of the duties involved in military service. The Canadian Forces provide, among other things, a series of informational brochures and films on the duties involved in military service to those who wish to enter the Canadian Forces; and

(d) personnel under the age of 18 must provide reliable proof of age prior to acceptance into national military service. An applicant must provide a legally recognized document, that is an original or a certified copy of their birth certificate or baptismal certificate, to prove his or her age.

            Currently, Canada allows voluntary recruitment to the Canadian Armed Forces at the age of 16; however, the National Defence Act[136] has been amended to ensure that no one under the age of 18 is sent into a combat zone.

 

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

As stated earlier, the enforcement mechanism established by the Convention on the Rights of the Child is the UN Committee on the Rights of the Child, which receives periodic reports on Canada’s compliance with the treaty.  The Continuing Committee of Officials on Human Rights is charged with facilitating preparation of Canada’s country reports to the UN Committee.  Representatives from the Continuing Committee appeared before the Committee in June 2001 and April 2005 to provide the Committee with information as to its role and mandate. 

 

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

The Continuing Committee is an organization formed within the Human Rights Program of the Department of Canadian Heritage as a permanent mechanism for coordination and collaboration with provinces and territories regarding the ratification and domestic implementation of international human rights instruments.  It includes federal, provincial, and territorial representatives from every jurisdiction and meets twice a year as a forum for dialogue and exchange.

The Continuing Committee’s mandate does not give it any policy or decision-making authority, although the Continuing Committee can make recommendations to the ministers responsible on its views concerning the development of Canada’s positions on international human rights issues.  In the past, the Continuing Committee has played an active role in the signing and ratification of international human rights treaties.[137] 

According to Eileen Sarkar at the Department of Canadian Heritage,

 

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

 

The committee is also involved in preparing for Canada’s appearances before UN treaty bodies, and its members are more frequently participating as members of the Canadian delegation. The committee examines issues associated with each of the human rights treaties, and discusses specific UN recommendations in more depth, including sharing best practices.[138]

 

 

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

            Some of the primary frustrations expressed to the Committee – both during these hearings, and in preparation for Promises to Keep – emphasized the inadequacy of Canada’s reporting process and follow-up to the Concluding Observations issued by the UN Committee.  On a very practical level, the Committee heard that the Continuing Committee of Officials on Human Rights does not operate effectively and is not an efficient mechanism for ensuring coordination among jurisdictions or with the various treaty bodies in Geneva and New York.  The Continuing Committee does not have an adequate mandate to fulfill these expectations – it is a consultation and coordination mechanism only. 

            Witnesses’ concerns also go beyond the Continuing Committee’s mandate and extend to the democratic deficit and complexity of the entire reporting and follow-up process.  Concerns emphasized the lack of transparency, low levels of ministerial or even significant political involvement, and lack of Parliamentary or public input.  It was pointed out that such issues lie at the heart of any functioning democracy.

 

a)  Reporting to the UN Committee

In putting together the country report for the Committee on the Rights of the Child, each jurisdiction prepares its own submission, with the federal component prepared by the Departments of Justice and Health.  Reports from all jurisdictions are then consolidated by the Continuing Committee of Officials on Human Rights to create Canada’s final report to the UN Committee. 

The process of consolidating lengthy reports from each jurisdiction has, in the past, led to dense documents.  Canada’s last country report, submitted in May 2001, was 284 pages.  In its latest Concluding Observations, the Committee on the Rights of the Child criticized the complexity and length of Canada’s reports:

the submission of a synthesis report based on both federal and provincial reports would have provided the Committee with a comparative analysis of the implementation of the Convention and a more coordinated and comprehensive picture of the valuable measures adopted by Canada to implement the Convention.[139]

 

            The Continuing Committee’s compilation of the report is also a painstakingly slow process, and has proven in the past to take at least 3 years.  But Maxwell Yalden points out that Canada’s complex federal structure is not a valid excuse:

We have been rather slow sometimes in preparing the reports to the committees.  From our point of view, that is inevitable because of our complex federal system.  That does not cut much ice with an international body because Canada, not the individual provinces and territories, is party to the covenant… We cannot really use that as an excuse.[140]

 

He also refers to the need to create a more streamlined report:

our reports would be much more impressive and a much more effective description of and defence of our views if they were shorter and if there were better consultations between and among the provinces and federal government.

 

Each province does things differently. Some provinces list all the illegal grounds of violation of human rights, others do not. Some do partly and others do not. There is no consistency at all and that makes for a bad report.[141]

Concerns also emphasize the lack of real public or non-governmental input into development of the country report.[142]  While Canada’s country report is comprised solely of federal, provincial, and territorial government contributions, NGO commentary has, in the past, been given to the UN Committee in a separate document prepared by the Canadian Coalition for the Rights of the Child.  Promises to Keep criticized the absence of Parliamentary input into or scrutiny of the reporting process.[143]

In addition to these problems, the Office of the UN High Commissioner for Human Rights (OHCHR) recognizes that its own demands are onerous and is currently undertaking an examination of how best to streamline the UN treaty bodies’ process.  Every treaty body currently faces extreme backlogs in terms of receipt and examination of country reports.[144]  

Witnesses such as Maxwell Yalden and the Committee on the Rights of the Child have emphasized to the Committee that this entire process must be transformed, both in Canada and within the UN, in order to create a more comprehensive and coordinated reporting effort, with increased dialogue built into that new framework.

 

            b)  Concluding Observations of the UN Committee

      i)  The Substance

The UN Committee’s Concluding Observations provide comments on the substantive areas in which it feels Canada has not lived up to its obligations under the Convention on the Rights of the Child.  In its two past Concluding Observations (1995 and 2003) with respect to Canada, the UN Committee has been consistent in its criticism of four important issues:

·         High levels of child poverty in Canada;

·         Children in migration – this includes trafficking in children, problems faced by separated children, settlement and integration of child migrants, and more generic problems faced by immigrant and asylum-seeking children;

·         Aboriginal children – Aboriginal children are disproportionately affected by a number of issues facing children across Canada, such as child protection issues, youth criminal justice, health and suicide rates, and poverty;

·         Corporal punishment – Section 43 of Canada’s Criminal Code[145] contains a “reasonable chastisement” defence, allowing the correction of children by force.        This provision has recently come under intense scrutiny.  In January 2004, the Supreme Court of Canada upheld section 43 in face of a constitutional challenge, finding that the Criminal Code provision did not violate the life, liberty and security of the person, equality, or cruel and unusual punishment rights contained in the Charter.[146]  The UN Committee has been consistently critical of this decision and of the section 43 defence in its Concluding Observations.

 

      ii)  The Process

The Geneva-based NGO Group for the Convention on the Rights of the Child and the UN Committee noted that Canada’s approach to receiving the UN Committee’s Concluding Observations is problematic.  When the Committee on the Rights of the Child 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.  However, these consultations are held behind closed doors.  Although the Concluding Observations are available on the UN and Canadian Heritage’s websites, there is little other effort made to publicly disseminate the UN Committee’s comments and criticisms or to ensure public debate or follow up. Witnesses such as the Committee on the Rights of the Child, representatives from the Inter-Parliamentary Union, and the NGO Group, have also criticized the lack of transparency in this process, noting the absence of any role for Parliament in reception and dissemination of the Concluding Observations.[147]

Currently, the NGO Group is concerned that few people in Canada are aware of the Committee on the Rights of the Child’s Concluding Observations, commenting that these Observations often have significant impact for one year and are then forgotten.[148]  The Committee on the Rights of the Child itself has also noticed a lack of follow-up in Canada because Parliamentarians are not sufficiently informed of their nation’s obligations.  Members comment that this was particularly so given that its Concluding Observations tend to be “shelved” by the government. 

Professor Anne Bayefsky of York University, appearing before the Committee in 2001, commented on the lack of transparency in both the reporting process and in receipt of the Concluding Observations:

It is not an open process.  There is no dialogue in general… it is basically not a consultative process, which I think is extremely unfortunate.  There is no reason it could not be a more constructive and inclusive process as to what our report should say and where we should go from here.  The answer is basically that no one sees [country] reports in advance at the moment.

 

They are submitted, but what happens to them afterwards?   The committees make recommendations on the basis of those reports.  What happens to those recommendations?  If an NGO has been particularly active and is able to drag along certain media, the recommendations get media attention.  For the most part they are completely ignored.  There is no process here in Canada to take the report and the subsequent commentary, to review them together in an open fashion and put forward constructive approaches to responding to those criticisms.  Those reports go nowhere, until the next time they are due.[149]

 

c)  The Committee’s Findings Concerning the Reporting and Follow-Up Process

On the basis of testimony from across Canada and abroad, the Committee has found that the current reporting and dissemination processes are too complex, leading to problems of coordination, compounded by the omission of important stakeholders.  Lack of transparency is a significant criticism.  The Continuing Committee appears to work behind a veil of secrecy.  Few in government, let alone the public, know anything about its composition, actions or deliberations.  Although consultations held in camera do facilitate free discussion, they do little to promote awareness of the Convention and the state of children’s rights in Canada

In addition, although the Continuing Committee itself meets twice a year, there has been no intergovernmental meeting on human rights at the ministerial level in over 15 years.  Four years ago, in Promises to Keep, this Committee criticized the Continuing Committee’s inactivity in this respect.  On June 11, 2001, Norman Moyer, Chair of the Continuing Committee told the Committee that:

These hearings also come at a useful time for my committee. The Continuing Committee of Officials on Human Rights is in the process of reviewing its mandate and the way it operates. Therefore, any comments that you may have on the nature of the committee will be much appreciated.[150]

In testimony before the Committee this year, Eileen Sarkar of Canadian Heritage stated that “Your comments were taken into account, and I believe at the last meeting of the [Continuing] Committee there was some discussion of the possibility of proposing to ministers a ministerial-level meeting in 2006.”[151]  The Committee awaits any action taken in this respect.

Ultimately, the Committee’s comments made in Promises to Keep remain true:

The real issue and problem is not, however, that the Continuing Committee of Officials on Human Rights is not providing a public forum for domestic accountability and scrutiny of Canada’s implementation of its international human rights commitments.  This is not its job.  The real problem for Canada is that no other official body or institution of government is performing this function either.[152]

            What is lacking is real political involvement in the process, either at a ministerial or a Parliamentary level.  This democratic deficit – which is only increased by the lack of transparency inherent in the current system, either through awareness raising or public input – leads the Committee to the conclusion that that Canada’s current reporting process and follow-up mechanism in terms of the Convention on the Rights of the Child (but also with respect to other conventions) are wholly inadequate.

 

C.  COMPLEXITIES OF IMPLEMENTATION

      1.  Canada’s Federal Nature

            a)  Implementation

            While how Canada handles its treaty ratification and implementation process more generally is the primary obstacle to effective protection of children’s rights in Canada, a number of other, more specific, factors also play a role.  Canada’s federal nature is one inevitable element that adds a level of complexity to implementing the Convention in Canada.  Jurisdiction is an issue of significant consideration when applying children’s rights on the ground.

i)  National Standards

Many of these witnesses, including the UN Committee through its Concluding Observations, noted that Canada lacks uniform national standards in a number of key areas with direct impact on children’s rights because of Canada’s constitutional structure and the broad nature of the Convention itself, which touches on a variety of issues under both federal and provincial jurisdictions.  Witnesses such as Professor Susan Reid of St. Thomas University, Peter Dudding of the Child Welfare League of Canada, Jahanshah Assadi, the UN High Commissioner for Refugees Representative in Canada, and representatives from the International Labour Office, commented that the absence of national standards has led to varying levels of protection across Canada

For example, at the International Labour Office, Jane Stewart, Executive Director for the Employment Sector, and Frans Roselaars, Director of the Infocus Programme on the Elimination of the Worst Forms of Child Labour, emphasized that Canada is not able to ratify ILO Convention No. 138 Concerning Minimum Age for Admission to Employment[153] because each province has a different minimum age.  While they commented that Canada remains broadly respectful of the principles enumerated in Convention No. 138, the fact that this Convention has not been ratified, and that some provinces do allow employment for children below the minimum age specified in the Convention, has meant that Canada is becoming “badly branded” among the 141 other States Parties.[154]  The Committee on the Rights of the Child reinforced this criticism in its Concluding Observations:

The Committee greatly appreciates the fact that Canada has committed resources to work towards the ending of economic exploitation of children on the international level… it is concerned that Canada has not ratified International Labour Organization Convention No. 138 concerning the Minimum Age for Admission to Employment and is concerned at the involvement of children under 13 years old in economic activity.

 

The Committee recommends that the State party ratify International Labour Organization Convention No. 138 concerning the Minimum Age for Admission to Employment and take the necessary measures for its effective implementation. The Committee further encourages the State party to conduct nationwide research to fully assess the extent to which children work, in order to take, when necessary, effective measures to prevent the exploitative employment of children in Canada.[155]

As well, during its hearings in Atlantic Canada, the Committee heard testimony as to varying standards concerning the provision of public health care to autistic children, and policies with respect to the separation of young offenders from adults.  With regards to young offenders, witnesses told the Committee that governments have, in the past, used Canada’s reservation under article 37(c) to combine young offenders and adults in facilities as a pragmatic solution simply to fulfill an immediate need, rather than in accordance with the actual justifications for the reservation put forward by the federal government.[156]  Professor Susan Reid noted that, “we have used it, unfortunately, as a way to make sure our beds are full…”[157]

Finally, many witnesses, including Peter Dudding and Jahanshah Assadi, commented on the lack of a uniform national age with respect to child protection issues.  While in British Columbia, youth receive some form of protection under child welfare legislation until the age of 19, in Ontario, the cut-off age is 16.  These variances have meant that service providers dealing with migrant children who arrive in Canada without their parents must apply different standards in two of the prime destinations for immigration in Canada.  In Ontario, they are unable to refer separated children to child protection authorities if over 16.  Witnesses noted that this same cut-off age also creates a contradiction with respect to the age until which children must remain in school in some provinces.  As stated by Professor Susan Reid,

The other thing that is quite interesting about New Brunswick is that there was a push in the Education Act to raise the school leaving age, and they increased it from 16 to 18.  You could, in theory, have 16- and 17-year-olds without a home who are required to go to school.[158]

            Echoing such concerns in its study on the impact of the implementation of the Convention on the Rights of the Child, the UNICEF Innocenti Research Centre emphasized that despite a country like Canada’s federal nature, governments must be careful to ensure that provincial differences do not “lead to discrimination against some children because they happen to live in a certain province, state or region.”[159]

 

ii)  Provincial Institutions Dealing with Children’s Rights

Through its hearings, the Committee learned that the institutions established to protect children’s rights in each province also perform significantly different functions.  These independent bodies retain a loose affiliation and dialogue through the Canadian Council of Provincial Child and Youth Advocates.  Some examples of these institutions and their differences are set out below:

·         Saskatchewan (Children’s Advocate) – In Saskatchewan, the powers of the Children’s Advocate are set out in The Ombudsman and Children’s Advocate Act.[160]  The role of the Advocate is to engage in public education campaigns concerning children’s rights, work to resolve disputes and conduct independent investigations of concerns involving services to children from provincial departments and agencies, conduct research to improve the interests and well-being of children, make recommendations with respect to services provided to children by provincial departments and agencies, and review decisions made by provincial departments and agencies.

·         Ontario(Office of Child and Family Services) – In Ontario, the powers of the Chief Advocate are set out in the Child and Family Services Act.[161]  The role of the Advocate is to coordinate and administer a system of advocacy, except before a court, on behalf of children and families dealing with services from approved agencies, and to advise the Minister of Community, Family and Children’s Services on matters and issues concerning the interests of those children and families, as well as reporting gaps in service, operational issues, and recommending solutions.  While the Office acts at arms length to the service delivery system, it reports administratively to the Assistant Deputy Minister.  Although the Office is not yet fully independent, the provincial government is proposing new legislation to rectify this situation.[162]

·         Quebec (Commission des droits de la personne et des droits de la jeunesse de Québec) – In Quebec, the powers of the Commission are set out in the Youth Protection Act.[163]  Rather than having one Advocate with staff, the Commission is composed of 15 members who investigate individual and more systemic complaints of discrimination, harassment, as well as child protection issues.  The Commission can refer any situation to the tribunal, where the Commission has reason to believe that a child’s rights have been violated by persons, bodies, or institutions.  The Commission may also make recommendations or refer issues to the provincial government.

·         Nova Scotia (Ombudsman) – In Nova Scotia, the powers of the Ombudsman, with a specialized youth and children mandate, are set out in the Ombudsman’s Act.[164]  The Ombudsman may resolve disputes or investigate concerns involving services to children provided by provincial or municipal departments or agencies; make recommendations with respect to these services; conduct research to improve the interests and well-being of children in government care; report to the Minister, departments or agencies; and engage in public education campaigns.

·         New Brunswick(Ombudsman) – In New Brunswick, the powers of the Ombudsman are set out in the Ombudsman Act.[165]  The Ombudsman may investigate complaints against administrative decisions and acts of provincial officials, agencies or organizations, and any municipality to determine if the decisions or actions were unreasonable, unjust, oppressive or discriminatory.  Although the Office of the Ombudsman does not have a specific mandate to protect only children’s rights, it does respond to complaints pertaining to children’s rights on a regular basis.  In 2004, the Office recommended the establishment of a children’s advocate for the province.  As a result, the Child and Youth Advocate Act[166]came into force in April 2005.  However, as of the writing of this report, no one had been appointed as Child and Youth Advocate, and the provincial legislature was considering a bill to amend the Act that could curtail the role of this Advocate.[167]  

·         Prince Edward Island Prince Edward Island is the only province with no provincial body dedicated to ensuring the protection of children’s rights.

·         Territories – None of the territories have a Children’s Advocate Office.  The Yukon Office of the Ombudsman has no specific mandate to deal with children’s rights issues.

            None of these bodies are constituted under legislation referring to the Convention on the Rights of the Child, although in practice, all make reference to the Convention in the course of their work.[168]

 

            b)  Maximizing Coordination

The Committee notes that the issue of jurisdictional complexity often contributes to a certain lack of coordination in terms of implementing the Convention.  As stated by Suzanne Williams, “[g]iven Canada’s diversity, not only across jurisdictions but also with legal systems, and the multicultural makeup of Canada, there is a real need for effective coordination of children rights.”[169] 

Certainly there is widespread recognition of the importance of children across government – throughout its hearings the Committee was overwhelmed by expressions of concern and care for children’s rights in each jurisdiction.  The Honourable Irwin Cotler made the protection of vulnerable persons one of his primary objectives upon his appointment as Minister of Justice in December 2003.  At an international human rights symposium in January 2005, Minister Cotler highlighted the importance of upholding the Convention on the Rights of the Child and its Optional Protocols, signaling that the protection of children must be at the forefront of the national and international agenda – the “tragedies of children’s rights must end.”[170]  Before the Committee in April 2005, he stated that:

The test of a just society, a society organized around the principles of equality and human dignity, is how it treats its children and other vulnerable persons, how we protect them from disadvantage and discrimination.[171]

The problem is that political will is often lost in the complexity of coordination and cooperation between jurisdictions.  Kathy Vandergrift emphasized this point, stating that “sometimes the best interests of children get lost in those contests between federal and provincial governments.”[172]

Yet, given Canada’s federal system, the Committee believes that jurisdictional complexities are manageable.  Suzanne Williams noted that,

While [the jurisdictional issue] is a real challenge, it can also be a real opportunity.  We have several jurisdictions that are acting to improve the lives of children, and we can learn from one another and share resources.  A real strength that we have is the diversity in this country.  Jurisdictional challenges should not be considered a barrier that cannot be overcome.[173]

 

            The Committee concluded that it should look for ways to handle the framework for implementation of children’s rights in Canada more effectively so as to breathe life into the Convention and foster an environment that supports the strong protection of children’s rights.

 

c)  Compliance

In its discussions about implementation and compliance, the Committee learned that a key concern among a wide variety of witnesses is the federal government’s unwillingness to directly incorporate international human rights treaties.  In particular, these concerns were expressed by Jeffrey Wilson, Kathy Vandergrift, Jean-François Noël of the International Bureau for Children’s Rights, lawyers at Justice for Children and Youth, and the Canadian Council of Provincial Child and Youth Advocates.

Because of the intricate series of federal, provincial, and territorial laws that must conform with a convention before it may be ratified, the Minister of Justice made it clear in his testimony that the federal government is only willing to accept implementation of the Convention on the Rights of the Child by means of the Canadian Charter of Rights and Freedoms, federal and provincial human rights legislation, and other legislation pertaining to matters addressed in the Convention. 

As noted in earlier in this Chapter and in Chapter 3, when dealing with international human rights treaties, the federal government conducts a review and analysis of existing laws, and usually determines that no modification of Canadian law is required, as the domestic laws already in place conform to the treaty obligations.[174]  With respect to the Convention on the Rights of the Child, the federal government’s argument was that even though Canada’s laws do not always match the explicit wording of the Convention, this consultation process ended in an assurance that the standards contained in Canada’s laws are now either equal to or even higher than those set out in the Convention itself.  As stated by John Holmes at the Department of Foreign Affairs in 2001,

we do not ratify until all jurisdictions indicate they support ratification and are in compliance with the obligations contained therein… We would await the results of provincial action or indication.  We would wait to see that they were in compliance with the instrument before we moved to ratification.[175]

            The argument is that because the federal government worked to ensure that Canada fulfills its obligations indirectly through the conformity of pre-existing legislation with the Convention, it does not have to directly incorporate the Convention by means of enabling or any other more explicit form of legislation.  

The Committee explored the concept of compliance and found that the term means the action or fact of being disposed to obey rules, or “meeting or in accordance with rules or standards.”[176]  “Compliance can be said to occur when the actual behavior of a given subject conforms to prescribed behavior…”[177]  Witnesses appearing before the Committee expressed uncertainty as to whether Canada’s pre-existing legislation/policy-oriented approach to international human rights treaties can truly be termed explicit compliance and urged the Committee to find ways to expressly implement the terms of the Convention.  In particular Jeffrey Wilson expressed his frustration with the government’s approach:

[Do not] delude yourself that this Convention has some meaning.  I make the point that it is not ratified into the Canadian law and so it has no binding nature and is more likely to be interpreted.  It is of moral persuasion only.[178] 

The uncertainties noted by Jeffrey Wilson were present in the testimony of federal Ministers before the Committee.  Minister Cotler asserted that Canada is in full compliance with the Convention because of the federal government’s consultation process and policy approach to implementation:

as Minister of Justice, in that regard, one of my duties is to ensure that our legislation is in compliance with the Charter of Rights and Freedoms, and our international human rights obligations, including the children’s rights convention…

 

[Since ratification], we have continued to review all proposed legislative and policy initiatives that have a direct impact upon children to ensure compliance with the Charter, the [Convention] and other international human rights obligations.  In so doing, we consider children’s rights from a contextual perspective because if we are to truly promote a child’s best interests, it is necessary to consider all of their rights together.[179]

 

Minister Dosanjh gave a more cautious response to the question of whether Canada is effectively implementing the Convention, when nations enter into international obligations and international conventions, one assumes, and I do as well, that we look upon those as obligations... Whether we are able in reality to live up to the obligations that we have signed on to is another question.[180]

 

Witnesses emphasized that the important question arising from the debate is: despite federal government assurances that is has reviewed existing laws and that Canada is in compliance with the Convention, if there is no legislation directly incorporating the terms of the Convention, what recourse does a child, adult, or institution that does not believe that Canada’s laws are in compliance with its international human rights commitments have?  At the present time, no body or government other than the Committee on the Rights of the Child has a mandate to respond to such concerns.  Witnesses such as Jeffrey Wilson, Kathy Vandergrift, Jean-François Noel, Justice for Children and Youth, and the Canadian Council of Provincial Child and Youth Advocates expressed concern that the government provides no clear message and little accountability.  The only time the federal government is ever obligated to explain precisely how Canada is in compliance with the Convention is every 5 years, in its report to the UN Committee.  Maxwell Yalden, former Member with the UN Human Rights Committee expressed his frustration with the Canadian approach: “I do not believe that we can hide behind this non-incorporation doctrine.”[181]

Minister Cotler’s testimony before the Committee outlines the ambiguity of this situation,

 

I would conclude by saying that, first, it is a rights-based international treaty and that, second, we seek to have our legislation conform to that rights-based international treaty.  We do not have the expressed obligation with regard to the international treaties as we do, for example, with respect to the obligatoriness in the manner of the Canadian Charter of Rights and Freedoms, but there is a presumption of conformity with respect to international law.  We seek, even without that notion of obligatoriness, to ensure that our legislation does in fact comport with our international obligations, having regard to the implementing issue where you may have mixed jurisdictional approaches, federal, provincial and the like.[182]

 

Such testimony has led the Committee to ask whether pointing to the Charter and various human rights and other legislation is sufficient to ensure compliance with the Convention, given the specific nature of the rights pertaining to children laid out within it?  Without ensuring that the explicit language used in the Convention is replicated in Canada’s laws, how can we be sure that children’s rights are actually enforceable, or that Canada is in full compliance with the Convention?

The Committee notes that Canada’s federal nature produces unique challenges for efficient and effective application of the Convention.  Because this particular Convention spans so many issues falling within different jurisdictions set out in the Constitution, and because of the sheer complexity of coordinating 13 jurisdictions, the federal government frequently faces situations in which federal-provincial-territorial cooperation is slow.  As stated by Minister Dosanjh, “Having come from the provincial government to the federal government, I can tell you that a lack of coordination exists at all levels of government and remains a serious issue.”[183] 

Ultimately, Canada has an obligation to make best efforts to implement international treaties domestically, no matter what jurisdictional hurdles are entrenched in the Constitution.

 

      2.  Lack of Awareness Concerning the Convention

            Finally, the Committee has heard numerous witnesses express concern about the lack of awareness, both in government and among the public, of the Convention and the rights enshrined in it.  Throughout its hearings, the Committee has become aware that there is very little knowledge of the Convention outside academic and advocacy circles.  In government, even among those dedicated to protecting children’s rights, knowledge of the 15 year old Convention is spotty at best.    

            Some government officials working towards the protection of children’s rights seem to operate in ignorance of the international tool at their disposal.  In many respects, the Convention is simply not used as a tool or a framework to protect children’s rights.  Christine Brennan of the Office of the Ombudsman of Nova Scotia told the Committee that,

in our educational campaign to provide education rights to government, youth and other youth-serving entities within the province, we discovered that 90 per cent do not even know that this Convention exists.  These people direct the youth-serving systems of our province.

 

Nova Scotia has an advanced system compared to the rest of the country, but we are embarrassed to say that the provincial government departments, excluding the Department of Community Services and the Department of Justice where we are very proactive, do not know about the goals of the Convention on the Rights of the Child.  As always, youth issues and rights are at the bottom of the serious issues in the country.[184]

 

            Bernard Richard, Ombudsman for New Brunswick who is currently also responsible for dealing with children’s rights issues, responded to a question concerning how often the New Brunswick public civil service and legislature used or even knew of the Convention:

I would say rarely, if ever, and I was a member of the legislature for about 13 years.  I do not know that I ever heard it mentioned in those years.  Certainly we do not use it at our office.  We do not refer to the Convention.  We refer to our statutes and laws and rights, our Charter of Rights and the legislation here in New Brunswick.  In my view, it is not used at all and not considered specifically…

 

Your invitation to me to come here has certainly helped me become more aware of the Convention, and it may be that our practice will change over the coming months and we will refer to the Convention in dealing with some of these cases, because I think it is an important tool that we have not been using in New Brunswick.[185]

 

Perhaps less surprisingly, children themselves were unaware of the existence of the Convention and the rights enshrined within it.  In both Newfoundland and Labrador and in New Brunswick, the Committee met with self-aware youth from a variety of backgrounds who had never heard of the Convention on the Rights of the Child before preparing for their meeting with the Committee.  Their comments emphasized the importance of awareness-raising, and the significance of knowing one’s rights as a first step towards empowerment. As stated by Megan Fitzgerald, in St. John’s, Newfoundland,

Florian called me about a week ago and asked me to come here… He told me I would have to read the Convention on the Rights of the Child.  I was, like, well, what is that, because I had never heard of it before.  I felt badly admitting that – because I am an elitist in my school.  I am very involved in the school, I maintain high marks, and I try to be involved in the community.  Yet, someone like me who knows so much about what is going on, at least in my community, knew nothing about my rights, as set out in the Convention on the Rights of the Child.

 

That is a big part of education and empowering youth.  How can we feel motivated and empowered to implement our rights into our own lives if we do not even know them?  That is something that we have to work on together – us as youth and you guys as the big shots.  We have to work on that, so that we can be empowered to put them into place in our own lives.[186]

 

            In Fredericton, New Brunswick, Ryan Bresson told the Committee that “the first thing is, I think it should be taught in the curriculum at schools because at least half of us did not even hear about this.  We cannot protect our rights if we do not know our rights.”[187]

            Recognized and understood by so few, awareness of the Convention only occasionally filters down to those it is meant to protect.  Although many children clearly understand that they do have rights in a general sense (as emphasized by Katie Cook in Fredericton, “As far as knowing about the Convention, I do not necessarily know that I have heard of that exact document, but we know we have those rights, especially as children. At least I do.”[188]), witnesses from across Canada have told the Committee that this is not enough.  Individuals such as Professor Katherine Covell; Janet Mirwaldt, Manitoba’s Children’s Advocate; and Dr. Cindy Kiro, New Zealand’s Children’s Commissioner, have indicated that for the Convention to ever be fully and effectively implemented in Canada, the public and the Convention’s primary stakeholders must know how particular rights affect their lives and have the potential to alter the framework around them when they are not being respected.  Witnesses emphasize that for children, learning about their rights is often a transformative experience.  As stated by the Committee on the Rights of the Child, when we as individuals are unaware of our rights, we cannot work to ensure that they are respected:

If the adults around children, their parents and other family members, teachers and carers do not understand the implications of the Convention, and above all its confirmation of the equal status of children as subjects of rights, it is most unlikely that the rights set out in the Convention will be realized for many children.[189]

 

            This is particularly the case when official institutions charged with protecting children’s rights are not aware of the full array of rights and tools at their disposal. 

On the basis of testimony, the Committee has concluded that the low level of public awareness of the Convention in Canada is an issue that should be rectified before we can safely point to effective implementation of the Convention at home.

 

D.  THE COMMITTEE’S FINDINGS

As a result of these observations, the Committee finds that Canada does not take its international human rights obligations seriously enough.  Evidence before the Committee indicates that jurisdictional complexities, the absence of effective institutions, an uncertain approach to human rights law, lack of transparency and political involvement, and a lack of awareness of the rights enshrined in the Convention, have led to ineffective application of the Convention on the Rights of the Child in the Canadian context.  The Committee finds that the federal government’s approach to compliance with children’s rights, and with the Convention in particular, is inadequate. 

This is so despite the hopeful tone adopted in Baker concerning the government’s obligation to respect the values outlined in the Convention on the Rights of the Child.  As noted earlier in this Chapter, although international human rights norms have been given scope by the government and courts to play a role domestically, it is still a secondary one.  While international law is a consideration in the judicial decision-making process, the values reflected in international instruments that are not directly incorporated serve mainly to inform the contextual approach to statutory interpretation.  The federal government itself puts great stock in its policy and consultation approach to the Convention on the Rights of the Child, but has shown itself unable to communicate a clear and unambiguous message about how precisely Canada is in compliance if the explicit language of the Convention is only occasionally found replicated in Canadian law.

All levels of government across Canada have a responsibility and the capacity to protect children’s rights; the question is simply of how effectively they are accomplishing this task.  Canada’s courts have begun to move towards referring to the Convention on the Rights of the Child in a variety of areas of the law – from immigration to child protection issues.[190]  But 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.

            Witnesses have repeatedly stated that tangible mechanisms are needed to ensure the implementation of the rights contained in the Convention at home, as well as ensuring enhanced government and Parliamentary accountability to children and all citizens.  These suggested mechanisms include a form of enabling legislation, the establishment of monitoring bodies to oversee the protection of children’s rights at the federal level; a more disciplined and structured process for both ratification and incorporation of international law; a simplified and more transparent reporting process; wide dissemination of the UN Committee’s Concluding Observations; enhanced consciousness raising concerning the rights enshrined in the Convention; capacity-building in the voluntary sector; and most importantly, ensuring the involvement of children throughout these processes.  The Committee is also particularly concerned with finding an effective role for Parliament in the fostering of an environment that is more conducive to the real protection of children’s rights in Canada.  These issues will be discussed further in the following Chapter.


CHAPTER FIVE – MECHANISMS FOR CHANGE

 We must do more to ensure that the goals and principles of the Convention on the Rights of the Child are fully and meaningfully realized for all children in Canada… We need not only dream of a just and humane society – we can build it.[191]

 

A.  INTRODUCTION

            Months of testimony – complemented by the observations, criticism, and recommendations of Committee on the Rights of the Child – have convinced the Committee of the inadequacy of Canada’s approach to implementing the Convention on the Rights of the Child, and by extension, international human rights treaties more generally.  The Committee has arrived at a number of proposals for change based on what it has heard.  These deal with both mechanisms to transform how Canada ratifies and incorporates its international human rights obligations, as well as specific mechanisms to ensure enhanced implementation of the Convention on the Rights of the Child.

Through its recommendations, the Committee seeks to ensure enhanced levels of accountability to children and all citizens – working to transform Canada’s international human rights obligations into meaningful law, policy, and practice.

 

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

As the Committee began to discover during its hearings for Promises to Keep, Canada’s current ratification and incorporation process for international human rights treaties is inefficient and ineffective.  Neither inclusive nor transparent, the mechanisms currently in place only occasionally lead to real compliance.  No body has ultimate responsibility for ensuring that international human rights conventions are effectively implemented in Canada.  The Committee’s hearings surrounding the Convention on the Rights of the Child have demonstrated that a democratic deficit exists, and that the public at large, as well as the most affected stakeholders, are often unaware of relevant treaties and the rights contained in them.

The Committee cannot turn back time to suggest improved means of approaching the Convention the Rights of the Child.  However, the Committee can suggest a process that could be put in place in order to transform the country’s approach to international human rights treaties in the future.  

 

     1.  The Treaty Negotiation Process

a)  The Need for Early Consultation and Cooperation

As seen in Chapter 2’s discussion of the history of the Convention on the Rights of the Child, Canada is invariably involved as soon as the United Nations or international community begin to prepare any new international human rights instrument.  The federal government is aware of the commitments under discussion, even if not involved in the negotiations themselves.

Witnesses’ concerns with respect to the ratification process have made it clear that that changes should be made at this stage to most effectively begin the awareness-raising and consultative processes essential to the proper functioning of any implementation mechanism.  As soon as international treaty negotiations begin, the wheels at home should begin to turn in order to ensure national awareness of the issues at stake and the obligations that may have to be undertaken by all levels of government across Canada.  Coordination is not a simple task.  However, working early in consultation with Parliament, the provinces and territories, and civil society stakeholders would ensure an increased level of cooperation, with more opportunity for coordination in the long-run.  As stated by Suzanne Williams of the International Institute for Child Rights and Development, “It is about setting up dialogue, which is a constant challenge in the federal system, but it is possible.”[192] 

While many provincial witnesses expressed concern about the difficulties of jurisdictional coordination, they emphasized that informal networks are important to making the system work.  Bernard Richard, New Brunswick’s Ombudsman, said that he “would be concerned that we could lose a lot of time debating issues of jurisdiction when we have shown that informally, we have been able to overcome some of these issues.”[193]  Collaborating in these early stages, would make it easier to ensure an informal information network allowing provincial and territorial governments to know what is expected of them in terms of Canada’s commitments under any given international human rights treaty.

 

b)  Getting the Process Started

Based on its hearings, the Committee has concludedthat a mechanism is needed to kick-start this early consultation process.  The government, through its Ministers, should take ownership of the process and work with the Continuing Committee of Officials on Human Rights to develop a more open, transparent, and consultative process.  The Continuing Committee of Officials for Human Rights should be informed as soon as human rights treaty negotiations begin, in order to get consultations under way.

As already noted, numerous witnesses have expressed concern that the Continuing Committee is ineffective.  The Continuing Committee lacks both political will and an effective mandate, and is unable to fulfill the Committee’s goals and recommendations as presently constituted.  The Committee suggests remedying this situation by taking responsibility for the Continuing Committee away from Canadian Heritage and giving it to the Department of Justice.  This approach was proposed by Professor Joanna Harrington of the University of Alberta, who found it “quite shocking that Canada’s international human rights treaties are within the Department of Heritage”,[194] and that such an approach marginalized Canada’s international human rights obligations.  Housing responsibility for the Continuing Committee with the Department of Justice could ensure that the Department responsible for monitoring and implementing federal laws across Canada is intimately aware of the international treaty obligations undertaken by the government, and has the opportunity to ensure that those laws are put into action.

 

c)  The Consultation Process – Explanatory Report and an Opportunity for Response

The Committee suggests that the government ensure that the Continuing Committee is mandated to begin consultations to examine the implications of the treaty under negotiation.  As a first step in this process, the Continuing Committee could produce a report to be distributed to all involved in the consultations – Parliament, all levels of government, and civil society stakeholders.  Similar to the “National Interest Analysis”[195] produced by the Australian government, this report could be an explanatory document setting out the goals and consequences of the treaty in question, including a description of the obligations imposed; the legal and financial implications; and the economic, environmental, social and cultural effects of the treaty.[196]  The report should be disseminated widely, and should certainly be available on the Continuing Committee’s website. 

The explanatory report distributed, witnesses such as Professor Ken Norman of the University of Saskatchewan emphasized the need for the federal government, through the Continuing Committee, to provide a forum for response, conducting consultations with Parliament, all levels of government, and individual stakeholders.

This entire report and consultation process should be part of the federal government’s standard procedure for reviewing and analyzing existing federal and provincial law to determine whether any amendment or new legislation is required to comply with the treaty obligations.  Witnesses commented that such consultations would give Parliament, provinces and territories, and interested stakeholders an opportunity to assess the adequacy of government goals for incorporation and implementation, as well as its assessment of whether pre-existing laws are in compliance.

 

      2.  Signature and Ratification

                  a)  At the Federal Level – A Formal Declaration of Intent

A number of witnesses appearing before the Committee, including Jeffrey Wilson, Kathy Vandergrift of World Vision Canada, Jean-François Noël of the International Bureau for Children’s Rights, lawyers at Justice for Children and Youth, and the Canadian Council of Provincial Child and Youth Advocates, placed significant emphasis on the need for Canada’s international human rights obligations to be specifically incorporated into Canadian law through some form of enabling legislation.[197]  In response to these concerns, the Committee suggests that the federal government table a “Declaration of intent to comply” in Parliament once the Continuing Committee’s consultations are completed, the Executive branch has signed the international instrument, signalling its intent to proceed towards ratification and implementation, and the federal government has determined that all legislation across the country conforms with the treaty.  

This need not be an onerous process.  The Committee is fully aware of the difficulties of adopting specific enabling legislation with respect to expansive human rights treaties that deal with broad principles and touch on the legislative powers of all jurisdictions.  The reasoning contained in the Core document forming part of the reports of States Parties: Canada – as cited in Chapter 3 – is valid.  Witnesses such as Peter Dudding of the Child Welfare League of Canada and Dr. Claire Crooks of the CAMH Centre for Prevention Science, told the Committee that concrete enabling legislation can sometimes lead to jurisdictional complexities and necessitate the establishment of mechanisms that cannot be effectively sustained in particular contexts, thus causing more harm than good.  As noted in the Inter-Parliamentary Union Handbook on Child Protection,

Legislation that fully conforms to international standards concerning the rights of children, but is impossible to implement because the necessary infrastructure does not exist, does little and may even be counter-productive in some respects.[198]

 

However, the tabling of an informal Declaration of intent to comply could officially signal the federal government’s intentions and create tangible promises against which the government can be measured in Canadian courts and law.  This could simply involve tabling the treaty 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.

The simpler the better.  As stated by Mike Comeau at the New Brunswick Department of Justice,

Standard form anythings… that facilitate provincial and territorial work are always helpful.  The challenge is to have standard form legislation that is facilitative, that makes things easier as opposed to making them more complex.[199]

 

Tabling such a Declaration of intent would also firmly establish the government’s interpretation of the rights contained in that treaty.  The government would no longer be able to argue, as it did in Baker, that it is not bound domestically by its international human rights commitments.  Courts would also be able to choose interpretations of the law similar to those contained in the international treaty.  This approach could assuage criticisms that the courts have too great a role in interpreting and applying international instruments, often leading to varying results;[200] and it could give the treaty “teeth”, allowing for the possibility of real repercussions in courts and elsewhere when obligations are ignored.

Finally, tabling a Declaration of intent would also contribute to awareness-raising – both about the treaty itself, and as to the meaning of ratification.  Witnesses expressed deep concern that few in Canada know that actual implementation of a treaty is necessary for it to be enforceable in domestic law, instead congratulating the federal government for ratification without realizing that this act in no way fully binds the nation.  As stated by Martha Mackinnon at Justice for Children and Youth,

I first discovered [that ratification did not mean that a treaty was necessarily enforceable in Canadian law] a month or two into my first public international law course… and I was horrified.  I felt cheated.  It was the first time, even as a law student, that I understood that the whole weight of a state could sign something and then say, ‘But we do not really mean it.’  I do not think Canadians generally think that is the case.[201]

 

            b)  Working with the Provinces and Territories

Noting witnesses’ concerns with respect to the lack of dialogue and coordination between jurisdictions, the Committee suggests that once the federal government has filed a Declaration of intent,  it use the forum of the Continuing Committee to engage in informal discussions with the provinces and territories.

Having signed the treaty and by extension, created an expectation for the provinces and territories to abide by the treaty through their legislation and policies, witnesses emphasized that the federal government cannot walk away, just as it cannot place the blame for lack of compliance on jurisdictional issues.  The Committee strongly suggests that the federal government establish a mechanism to help fund and provide resources to the provinces and territories, so as to facilitate their capacity to comply with Canada’s international obligations.

 

            c)  Upon Ratification

This process would ensure that the Executive still has full powers to both sign and ratify international human rights treaties, but that the process would be more open and accountable to the public.  As stated by Professor Ken Norman when he appeared before this Committee in 2001, “[t]he democratic deficit can be dealt with by some tabling in Parliament ahead of time, before ratification, to begin the debate politically about these norms.”[202]  The key is finding a voice for Parliament to ensure accountability to the public, enhancing jurisdictional cooperation and coordination, raising public awareness concerning Canada’s commitments in international law, and establishing a more formal process to ensure compliance with those commitments.

The Committee suggests that after the Executive officially ratifies the treaty, the international instrument be tabled in both Houses of Parliament.

 

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

            a)  The United Nations Reporting Requirement

Going beyond the ratification process to make recommendations concerning international human rights treaties already in existence, as well as those yet to come, witnesses emphasized the need for more efficiency, transparency, and accountability in the process for reporting to the UN.  As already noted, the current reporting process to UN treaty bodies is cumbersome and inefficient – a problem both for treaty bodies that must read and analyze the reports,[203] as well as for the Continuing Committee of Officials on Human Rights that must deal with the complexities of jurisdictional coordination. 

Witnesses such as Tara Ashtakala of the Canadian Coalition for the Rights of the Child and Maxwell Yalden emphasized that one of the first steps towards reforming this process could be to ensure the responsible Ministers ensure that the Continuing Committee abides by realistic timeframes.  They commented that the Continuing Committee should begin its consultations earlier, giving provinces and territories ample forewarning of their reporting requirements – knowing that it can take years to develop a comprehensive report to the UN treaty bodies, and that these country reports are required every 4 or 5 years depending on the treaty.[204]  The Committee believes that Parliament should also be given a place at the table during these consultations, with specific invitation extended to Parliamentarians with expertise in the particular issue area under discussion.

            Once the report is prepared, the Committee notes that Parliament has an important role to play in awareness-raising and enhancing government accountability by monitoring levels of compliance.  Following suggestions from a number of witnesses, including Professor Joanna Harrington and those arising from the Committee’s fact finding missions in Europe, the Committee has concluded that Canada’s country reports, and later the UN treaty body’s Concluding Observations, and a follow-up Government Response should be tabled in Parliament and subject to committee scrutiny.  This is similar to the practice in countries such as Sweden, which tables the Concluding Observations of the Committee on the Rights of the Child with its Parliament.  Once these documents are referred to them, Parliamentary Committees could call advocacy groups and individuals experts to comment on the documents and their observations about Canada’s compliance with its international obligations.  The Committees could also call on government Ministers and department officials to respond.  This approach echoes the comments of Maxwell Yalden:

I also share the view of more Parliamentary scrutiny of these reports… Once the report is prepared, perhaps Parliament could have a look at it.  Certainly, when the Committee on the Rights of the Child or the Human Rights Committee submits its Concluding Observations, there should be some form of scrutiny by [the Senate Human Rights] Committee.  They should call government witnesses to explain whether the [government] is in breach of one or another of the obligations set out in these covenants.  That would be helpful.  That would keep the government’s feet to the fire, and that would be a good thing.[205]

           

Such an approach would ensure the institutionalization of continued consultation and scrutiny of the application and implementation of Canada’s international human rights obligations.[206]  Not only would Parliamentary scrutiny of these reports improve government accountability, it could also provide an important forum for public input, as well as education and awareness-raising by ensuring widespread dissemination of the reports.  This should not be a closed process, but one that is brought to the attention of all concerned citizens.  As stated by the Committee on the Rights of the Child in its General Comment on implementation,

The reporting process provides a unique form of… accountability for how States treat children and their rights.  But unless reports are disseminated and constructively debated at the national level, the process is unlikely to have substantial impact on children’s lives.[207] 

 

            During its hearings in Sweden, an all-party network of Parliamentarians dealing with the protection of children’s rights told this Committee that in its experience, Parliament is the best forum for exposing the issues raised by the Concluding Observations.[208]  The Inter-Parliamentary Union Handbook on Child Protection notes that,

Parliaments and their members… have the capacity not only to influence the decisions and actions of government but also to connect with communities and constituencies to influence opinions and actions… 

 

As opinion leaders and representatives of the people, parliamentarians also play an important advocacy role, raising awareness on specific societal issues of concern in their constituencies as well as at national and international levels.[209]

 

Ultimately, the UN reporting process is one of consciousness-raising and moral suasion, as the UN treaty bodies themselves lack any power of enforcement.  The Committee’s recommendations can only serve to enhance these powers.  A Member of the Committee on the Rights of the Child observed to the Committee that the involvement of Parliamentarians creates an important opportunity for instigating change in democratic societies.[210]

 

b)  Use of International Instruments when Proposing New Legislation and Policy

Finally, practically all witnesses appearing before the Committee sought some form of assurance that all new legislation proposed by the federal government and passed by Parliament conform to Canada’s international human rights obligations. 

The Committee heard that currently, the government and Parliament use the Canadian Charter of Rights and Freedoms as a “checklist” for all government departments to ensure that basic rights and freedoms are respected when proposing new legislation and policy – the Minister of Justice is required by statute to ensure the compliance of proposed government legislation with the Charter.[211]

Yet, despite the fact that the Supreme Court of Canada has ruled that the Charter should generally be presumed to provide at least as much protection as those rights enshrined in international human rights instruments,[212] the Committee does not believe that this is a strong enough guarantee. 

The Committee suggests that the government comprehensively and systematically consider Canada’s major international human rights treaty commitments when drafting legislation and policy.  As stated by Professor Harrington,

Mainstreaming international human rights obligations as legal obligations and making it an obligation of the Justice Department to ensure that, in addition to being Charter compliant, legislation is compliant with international human rights treaties would attract further attention to these obligations and ensure their ongoing scrutiny and implementation.[213]

These rights are already well established in Canadian law – adding this extra process would not be an overly onerous task.  Rather, through its hearings, the Committee has come to believe that this step is fundamentally necessary to the protection of human rights and compliance with Canada’s international human rights obligations. 

 

     4.  The Committee’s Comments

In order to adequately respond to witnesses’ concerns, the Committee has concluded that both Parliament and civil society must be assured of an enhanced role in the international human rights treaty ratification process.  By ensuring such transparency, scrutiny, and consultation, Canada’s international treaty obligations will gain legitimacy, accompanied by enhanced government accountability and compliance with their terms.[214]

There may be associated costs with implementing this more consultative process – particularly in terms of time.  Yet, given that concerns about the ratification and incorporation process currently revolve around their cumbersome nature and lack of coordination among jurisdictions, the Committee believes that increased transparency and consultation would  in fact result in decreasing complexity and ensuring enhanced levels of cooperation, leading to increased coordination, and, in the long-run, a more efficient use of time.

One of the most important points to be taken away from this discussion is that witnesses do not argue that Canada should rush into its international human rights commitments.  Rather, the Committee has recommended mechanisms to promote consciousness-raising among all jurisdictions and stakeholders in order to ensure cooperation, coordination, and compliance with Canada’s international obligations at all levels of government.  This will help to generate a greater respect for international law by demonstrating that such legislation and obligations apply within a democratic context that holds government and Parliamentarians accountable to their nation.[215]

 

RECOMMENDATION 1

 

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.

 

C.  IMPLEMENTING THE CONVENTION ON THE RIGHTS OF THE CHILD

            Returning to the specific issue of Canada’s international obligations with respect to the rights and freedoms of children, the Committee’s hearings and investigations have led the Committee to the conclusion  that the Convention on the Rights of the Child is not solidly embedded in either Canadian law, policy, or our national psyche.  Canadians are too often unaware of the rights enshrined in the Convention, while the government and courts only use it as a strongly worded guiding principle with which they attempt to ensure that our laws conform, rather than treating it as an instrument necessitating concrete enforcement.  No body is in charge of ensuring that the Convention is effectively implemented in Canada.

The Committee’s observations during its study for Promises to Keep, and again in this study through the lens of children’s rights, have led the Committee to recommend making implementation of Canada’s international human rights obligations simpler, more transparent, and effective – both before treaties are signed and afterwards.  Within this framework, the Committee has sought to find an enhanced role for Parliament to increase accountability for government as a whole.  Most importantly, witnesses have repeatedly emphasized the absolute need to hear the voices of children and ensure that their presence and needs are felt in all aspects of Canadian legislation and policy.

Other Canadian jurisdictions are taking their own approaches to the full incorporation of children’s rights.  In Quebec, the Commission des droits de la personne et des droits de la jeunesse proposed amending the Quebec Charter of Human Rights and Freedoms[216]to include a statement that the Quebec Charter is inspired by international legal instruments relating to human rights and freedoms – in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and the Convention on the Rights of the Child.[217] Such recommendations are an example to other provinces, territories, and Human Rights Commissions across Canada.

In the Committee’s discussions with the Committee on the Rights of the Child, Members emphasized that “implementation is key” to making the Convention work, and that for Canada to claim full respect for the rights and freedoms of children at home, it must improve its level of actual compliance with the Convention.[218]  As noted by Professor Peter Leuprecht, the Convention has both a passive and an active component.  In article 2,

[t]he passive obligation to respect requires a state party to refrain from violations of the rights set forth in the convention.  The obligation to ensure goes well beyond that; it implies an affirmative obligation on the part of the state to take whatever measures are necessary to enable children to enjoy and exercise their rights.[219]

 

Having concluded that the federal government does not have effective mechanisms in place to ensure compliance with its international human rights treaty obligations, ample evidence before the Committee has led the Committee to conclude that additional mechanisms need to be put in place to ensure effective protection of children’s rights in Canada.  In response to concerns expressed by the Committee on the Rights of the Child and witnesses across Canada and abroad, the Committee will make proposals to guarantee systematic monitoring of implementation of the Convention in order to ensure effective compliance.  These include proposals for the establishment of a federal interdepartmental implementation working group for coordination and monitoring of 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.  Within each of these recommendations, the Committee highlights witnesses’ emphasis on 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.

 

RECOMMENDATION 2

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

 

      1.  Children’s Commissioner

            a)  The Body

            In addition to lacking an interdepartmental body to coordinate federal government activities, legislation, and policy, witnesses and the UN Committee pointed out that Canada is one of the few countries in the developed world that does not have a permanently funded mechanism designed to monitor the protection of children’s rights.  The Committee itself has met with the Children’s Ombudsmen in Norway and Sweden, the Children’s Commissioners in New Zealand, Scotland, and England.

During its hearings across Canada and abroad, the Committee quickly realized that one of its primary proposals should be the establishment of a Children’s Commissioner at the federal level in CanadaAlmost every witness who appeared before the Committee, whether independent experts, advocates for children’s rights, or those linked to the UN supported the establishment of such a monitoring body.  In particular, the Committee on the Rights of the Child criticized Canada’s lack of a federal monitoring body in its latest Concluding Observations:

The Committee notes that eight Canadian provinces have an Ombudsman for Children… the Committee regrets that such an institution at the federal level has not been established.

 

The Committee recommends that the State party establish at the federal level an ombudsman’s office responsible for children’s rights and ensure appropriate funding for its effective functioning.[220]

            In its General Comment on the implementation of monitoring bodies, the UN Committee emphasized that the establishment of such a body is part of a States Party’s obligations under article 4 of the Convention, stating that

the Committee on the Rights of the Child considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights.[221]

            The Paris Principles Relating to the Status of National Human Rights Institutions,[222] adopted by the UN General Assembly in 1993 list the essential elements of such national human rights institutions: a broad mandate established through legislation; a pluralistic representation of society among the appointed members; the power to promote and protect human rights; adequate funding to provide independence from government; and responsibilities, such as submitting reports on human rights matters, promoting harmonization of national legislation with international obligations, encouraging domestic implementation, contributing to country reports to UN treaty bodies, public information and awareness raising, and research.

 

      i)  The Name

The Committee suggests that the new body be named “Children’s Commissioner” in order to highlight the importance of the rights-based approach enshrined in the Convention.  Testimony from New Zealand, where legislation was changed in 2003 to highlight this distinction, emphasized the importance of such an approach.  Dr. Cindy Kiro, Children’s Commissioner for New Zealand, explained the implications of this shift:

The change of name is quite significant.  Under the initial legislation, the name was the Commissioner for Children; it is now children’s, with an apostrophe – Children’s Commissioner.  The change is intended to denote the ownership of the role by children.  The change in name also signals an important shift in focus.  The original intention of the role was very much around child welfare, in particular, around the functioning of our statutory child welfare agency… the focus is now more clearly on children’s rights. Thus, a shift from a welfare focus and, in particular, I would suggest, a reactive individual case-based focus to one that is rights based, which is more proactive and systemic and looks at how to intervene to stop things from happening.[223]

 

                  ii)  Independence

Witnesses from across Canada and abroad outlined how such an office could be structured.  They emphasized that Canada’s Children’s Commissioner should be an Officer of Parliament – appointed by Parliament and accountable to it, and through Parliament, to children and all citizens.  The body should be an arm’s length, independent institution, endowed with real legal powers in order for it to effectively monitor implementation and protection of children’s rights.[224]  As noted by the Committee on the Rights of the Child,

The mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers.[225]

 

            The situation of Norway’s Ombudsman for Children, Reidar Hjermann, highlighted the importance of this issue.  Although nominally independent, his office is in fact under the administrative control of the Ministry for Children and Family Affairs – the very body it is charged with monitoring.  In the past, this control has constrained the Ombudsman’s power – he has been warned by the Ministry that issues such as government provision of baby bonuses to parents who keep their children out of pre-school are of a political nature, and thus not appropriate for comment or criticism from the monitoring body.[226]

As well, while Professor Kay Tisdall of the University of Edinburgh emphasized that the Convention on the Rights of the Child must be more than “just an empty office”,[227] Professor Nicholas Bala of Queen’s University and Jeffrey Wilson highlighted the absolute need for a strong monitoring body with tangible powers:

Mr. Wilson: …The child advocate would have to have some power.  They must be able to take action.  It would be a big issue if they could not take any action.

 

Mr. Bala: I completely agree with that.  You would not want someone who is merely a public relations figure for the federal government to be the official children’s advocate.  You would want someone with investigative powers to make recommendations or to directly provide remedies for children.  The person should also have legal powers, a clear budget and autonomy.

 

Your question is a profound one.  Does having an ethics commissioner mean that politicians can say we do not have to worry about ethics, because we have an ethics commissioner?  Having an ethics commissioner, and similar officers, have highlighted the importance of the matter and given it some teeth.

 

There is a legitimate tension between the government and those offices.  As long as they have the visibility, independence and powers, they improve the situation for the different kinds of issues with which they deal.  The Auditor General is another good example.[228]

 

                  iii)  The Need for Legislation

Witnesses also emphasized the necessity of clearly-worded legislation setting out the specifics of the powers and duties of the new office, as is the case with similar bodies, such as the Official Languages Commissioner or the Privacy Commissioner.  Rita Karakas of Save the Children Canada stated that,

As with the Commissioner of Official Languages, there must be legislation which then enables enactment so the Commissioner has some capacity, just as the Auditor General has some capacity.  There has to be the ability to act, to intervene.[229]

 

However, beyond setting out the generic responsibilities of this monitoring body, the Commissioner should have a statutory responsibility to have regard to the Convention on the Rights of the Child.  In 1993, Sweden enacted the first legislation to explicitly link the Ombudsman’s mandate to domestic implementation of the Convention.[230]  As well, in addition to referring to the Convention, the New Zealand legislation includes the international instrument as an appendix, thus emphasizing its centrality to the Commissioner’s role.

Finally, Canada’s new law should include a statutory responsibility for the Children’s Commissioner to hear from and involve children in its operations.  This point will be discussed further in Part C1(b)(vi) of this section.

 

                  iv)  Accountability

As was highlighted by numerous witnesses, including Ontario’s Child Advocate, the Committee believes that one of the primary purposes of the Children’s Commissioner should be to ensure the government’s accountability to children and all citizens.  The Committee emphasizes that this body cannot merely serve as a reason for Parliamentarians and government to step away from their responsibilities in terms of children’s rights.  The Commissioner must be given sufficient powers to act in order to ensure effective protection of children’s rights in Canada.  This point was echoed by the Canadian Council of Provincial Child and Youth Advocates:

A Children’s Commissioner would provide a means of accountability and ensure that the government’s commitment to the [Convention] is being carried out in real measures.  It would also serve as a method to evaluate the effectiveness of existing and proposed policies and legislation.[231]

 

b)  The Role of the Children’s Commissioner

      i)  Monitoring Role

One of the roles of the Children’s Commissioner should be to monitor the federal government’s implementation of the Convention across Canada.  The Committee recognizes that it is the government’s role to implement the Convention, but that alternate mechanisms are needed to ensure the effectiveness of that implementation. 

All witnesses in support of such a body emphasized that the Children’s Commissioner should conduct ongoing examinations of federal legislation, services, and funding for programs affecting children and their rights – making “recommendations, assessments and criticisms”[232] of government action or inaction in order to facilitate change.  The Commissioner must work to keep the government to its promises,[233] highlighting ways in which Canadian law, policy, and practice fail to respect the rights outlined in the Convention.[234]

The Committee suggests that the Children’s Commissioner also be mandated to assist the federal government with preparation of Canada’s periodic report to the Committee on the Rights of the Child, in partial response to the numerous criticisms heard with respect to this reporting process.  Such assistance could involve providing advice or recommendations, and could go so far as to involve the preparation of a parallel report by the Commissioner for submission to both the government and the Committee on the Rights of the Child.

Finally, within the purview of this monitoring role, the Commissioner should be mandated to report annually to Parliament with its assessment of the federal government’s implementation of the Convention.  The report would essentially be a statement as to the status of children’s rights in Canada for a particular year.  Minister Ken Dryden strongly supported such a report, commenting that:

What parents or any citizen or any politician wants to know is: How are our kids doing?  We want to know in terms of their health, their education, and in terms of all the other aspects of their lives:  How are they doing?  How are they doing compared to last year, compared to five years ago or compared to 20 years ago?  How are they doing compared to kids in other countries?  We also want to know how they are doing according to the standards we have in our heads.  As Canadians, we have certain understandings and expectations of what it is to be Canadian.  How are we doing relative to those understandings? [235]

 

As stated by the Committee on the Rights of the Child, tabling an annual report would “provide parliamentarians with an opportunity to discuss the work of the [Commissioner] in respect of children’s rights and the State’s compliance with the Convention.”[236]  It would also sensitize government and the public as to the rights enshrined in the Convention.  The UNICEF Innocenti Research Centre highlights the fact that annual reports “create visibility for children’s real lives and they further increase understanding and hopefully initiate debate on the breaches of their rights.”[237]

 

                  ii)  Investigative Powers

Witnesses such as Deborah Parker-Loewen, Children’s Advocate for Saskatchewan, and Jean-François Noël were adamant that the Children’s Commissioner also be endowed with significant independent investigative powers – not just of the government’s implementation of the Convention, but also of more systemic issues and complaints concerning children’s rights in Canada.  Through these means, the Commissioner would be able to stimulate public debate on various issues and make effective recommendations for change.

Like Professor Joanna Harrington, the Committee suggests that the role of Canada’s Commissioner ultimately be to act as a general spokesperson for children and conduct systemic investigations, similar to the role of the Children’s Ombudsman in Sweden, Scotland, and England, who do not have a mandate to intervene in specific individual cases.  The Committee believes that the Commissioner could work to ensure that mechanisms are in place to deal with specific complaints with respect to children’s rights, rather than dealing with individual complaints itself.[238]  This would mean referral of specific issues to the provincial child advocates and ombudsmen, as well as immigration and Aboriginal issues to the appropriate federal court or tribunal.  As stated by Save the Children Norway in its Children’s Ombudsman report,

Whether able to handle individual complaints or not, it is important that the ombudsman keeps a constant eye on forces in society that serve as violations or obstacles to the rights of children, and bring this knowledge to the attention of the responsible parts of government as well as to the public.  Individual complaints could be used to form the basis for more… general initiatives to amend legislation or to remove other factors that result in violations of children’s rights.[239]

 

                  iii)  Awareness-Raising

Based on discussions with national children’s ombudsmen in other countries, the Committee has concluded that the Children’s Commissioner should have an awareness-raising role to more fully respond to Canada’s obligations under article 42 of the Convention.  The Commissioner should be empowered to conduct public education campaigns concerning the Convention and its rights, as well as with respect to specific issues pertaining to children.  For example, in New Zealand, the Office of the Children’s Commissioner runs intensive workshops about child advocacy across the country and publishes a quarterly newsletter about children’s issues.[240]

As an important part of this role, the Children’s Commissioner should work to ensure accessibility and visibility to children, parents, and those providing services to them across Canada.  By advertising its presence and responsibilities, the Commissioner would enhance its own accessibility.  This point was emphasized by all Commissioners who testified before the Committee.  Like awareness, facilitated access to the Children’s Commissioner is a crucial part of ensuring effective protection of children’s rights.  Witnesses highlighted the fact that where individuals and children are unaware of the resources available to them, resources become underutilized and monitoring and rights protection is less certain.

 

                  iv)  Aboriginal Affairs

Based on its discussions with the Minister of Indian and Northern Affairs, the Honourable Andy Scott, about the particular vulnerabilities of Aboriginal children, and their clear marginalization in Canadian society, the Committee strongly believes that the Office of the Children’s Commissioner should have a high level officer dedicated to investigating and monitoring protection of these Aboriginal children’s rights.  First Nations children cannot turn to the pre-existing provincial advocates because of jurisdictional barriers.  As stated by Cindy Blackstock of the First Nations Child and Family Caring Society of Canada, “there needs to be someone at a federal level to look at the violations of Aboriginal children’s rights across different disciplines so that we know what they are.”[241]

This officer should hold an influential position within the Office of the Commissioner to ensure that this dedicated role is not lost among the myriad of other issues and investigations undertaken by the Children’s Commissioner.  Perhaps a Deputy Commissioner could be assigned this role.

New Zealand’s Children’s Commissioner provides a significant example of how Aboriginal children’s issues can be prioritized within the Office of the Children’s Commissioner.  Not only is the current commissioner “a Maori woman, and who brings that sensibility to bear for the well-being of all children in New Zealand”,[242] but the Office of the Commissioner also ensures that particular significance is placed on the protection of Aboriginal children’s rights in the country.  Dr. Cindy Kiro commented that

What happens to Maori children is a priority of my office, and it is a priority for two reasons.  One is that the same kind of negative statistics and negative experiences that you have just described for Aboriginal or indigenous communities within Canada is very much a feature of what happens to Maori children here in New Zealand…

 

The second reason… is that there are very particular rights and obligations that both the state and society as a whole have in respect of those peoples and communities.  To be frank, there is nowhere else in the world where these peoples exist.[243]

 

 

                  v)  Liaison Role

Provincial advocates emphasized to the Committee that the Children’s Commissioner should act as a liaison with the Canadian Council of Provincial Child and Youth Advocates to further facilitate the protection of children’s rights and effective monitoring across Canada.  Although working with different legislation and in different jurisdictions, these advocates can share information that may facilitate dialogue and investigations into particular and more systemic issues concerning the protection of children’s rights.  These bodies could work together to establish best practices and facilitate the creation of national uniform standards, using the federal Commissioner as a coordinating framework.  Pointing out how these bodies can use jurisdictional frictions to facilitate dialogue and beneficial change, Judy Finlay, Ontario’s Child Advocate stated that,

[a federal] Commissioner can be helpful to try to articulate the questions and to mediate some solutions.  I do not think the passionate questions and the friction are bad.  We need to have the dialogue in our country, and we need to have children as part of the dialogue.  If we were to include young people and children in the conversation, we would quickly determine what is meaningful, because the young people would help us to do that…

 

Even though we have different mandates and somewhat different authorities, we find that the issues are the same for children’s advocates across the country.  As a council, we would welcome and work closely with a Commissioner.  Almost all provinces now have a provincially appointed advocate.  The liaison between the provinces, through the Advocates, to the Commissioner would be one possible remedy to some of the disagreements or frictions between the provinces and the federal authority.[244]

 

                  vi)  Involvement of Children

            One of the issues that the Committee heard echoed across Canada and abroad was the primary importance of involving children.  As stated by Céline Giroux, Vice President of the Commission des droits de la personne et des droits de la jeunesse of Quebec,

we have to realized that it is not enough to speak on behalf of children and young people.  We must also speak with them, help them to express their thoughts, educate them about their rights and allow them to influence the decisions that concern them.[245]

 

            Minister Dryden echoed the need to hear from children in his comments to the Committee:

The way to get underneath this, so that we have a real drive and energy to do something for children, is to listen to children's voices, not mini-adult voices.  Ask them to talk about their lives, each part of their lives.  What does it feel like to do this?  What are you most proud of?  What bugs you? [246]

 

            Finally, Professor Aynsley-Green, England’s Children’s Commissioner, emphasized to the Committee that participation can often create more momentum than rights on their own.

In response to these concerns, the Committee strongly suggests that the Children’s Commissioner have a statutory obligation to listen to and involve children.  According to article 12 of the Convention on the Rights of the Child, children have a right to express their views and have those views taken seriously in all matters affecting them.  The Commissioner should be mandated to fulfill this obligation as defender of children’s rights at the federal level.  As stated by the Committee on the Rights of the Child, the Children’s Commissioner should “have direct contact with children and [ensure] that children are appropriately involved and consulted.”[247]  The Committee notes that participation is a basic political right.

However, not only should the Commissioner be mandated to involve children, the Committee notes that such involvement should be meaningful and effective.  As one example, the New Zealand Children’s Commissioner is assisted by a young people’s reference group, providing the Office with representation and perspectives from children across the country.  The Committee on the Rights of the Child comments that

appearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change.  Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights.[248]

            Ultimately, it is important that the voices, and not just the choices, of children are heard.  Adults must not interpret the needs and wishes of children, but listen to them directly.  The Committee has heard that giving children a place at the table creates an opportunity to challenge stereotypes and empower children.  Paula Thomas of the Native Council of Prince Edward Island emphasized this point, telling the Committee that “I know that, when growing up, I never thought about politics because no one listened.”[249]  Facilitating expression often allows people to exceed all expectations.[250]  Joelle LaFargue stated that,

One thing I have noticed about kids my own age or younger, or sometimes even older, is that when you ask them their opinions, they shrug and say, “I don’t know.”  I find this sad because I believe that everyone is entitled to have their own opinions and to be heard.  Often, kids do not have opinions or they do not say that they have opinions because they feel that it does not matter because they are either not taken seriously, or when they do say their opinions, it does not change anything.[251]

            This is particularly the case with respect to children whose voice is significantly marginalized in Canadian society.  As stated by Bridget Cairns of the Association of Community Living of Prince Edward Island,

That is basically what every parent of a child with a disability wants: their child to have their own voice, and if they do not have the capacity to speak, that they are supported to express their views.  It is essential that self-advocates actually have their voices heard.[252]

As a result of this testimony, the Committee has concluded that the Children’s Commissioner should be endowed not simply with a right to hear from children, but with a statutory responsibility to do so meaningfully, as is the case in New Zealand.  Marilyn McCormack at the Newfoundland and Labrador Office of the Child and Youth Advocate highlighted this need:

I think it should be in all children’s legislation.  That is what we advocate.  In our legislation, it says that we have a right to meet with children and youth and interview them.  I think it should be in all the children’s legislation that children should be heard.  I think that would be excellent.[253]

 

            The Committee believes that through these means, Canada’s Children’s Commissioner would have an opportunity to serve as a powerful catalyst for legislative, policy and attitudinal change.[254]

 

RECOMMENDATION 3  

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.

 

      2.  Federal Interdepartmental Implementation Working Group for Children

a)  The Body

In addition to the independent Children’s Commissioner needed for monitoring children’s rights in Canada, witnesses expressed particular concern about the fragmentation that currently exists with respect to children within the federal government.  What is needed is a form of lead or coordination Ministry to ensure that children’s rights do not get lost in the interdepartmental shuffle.  As stated by Minister Dryden,

As we know, lives disrespect jurisdiction.  They disrespect mandates and portfolios.  Lives are lived wherever, and one of the challenges that any organization has, and it is certainly a challenge for government, is not to fragment our approaches.  Usually that happens for good, well-intentioned reasons in circumstances where we see a problem we want to address.  Then we see another problem that we want to address.  What cuts across all of that is a life. [255]

 

Following up on the recommendations of numerous witnesses such as Suzanne Williams, Judy Finlay, Ontario’s Child Advocate, and the Minister of Justice, the Committee recommends that the federal government establish an interdepartmental implementation working group, entrusted with ensuring the protection of children’s rights across federal government in order to improve compliance with and implementation of the Convention on the Rights of the Child within government itself.  When Canada first ratified the Convention in 1991, responsibility for coordinating implementation of the Convention and reporting to the Committee on the Rights of the Child rested with the Department of Justice and Health Canada’s Children’s Bureau.  Today, the Department of Justice and the Division of Childhood and Adolescence within the Public Health Agency are the primary agents responsible for compiling the federal government’s portion of the country report to the UN.

However, witnesses emphasized that housing reporting responsibility within these two departments is not enough.  Multiple agencies across the federal government deal with issues relating to children’s rights – what is needed is a coordinating agency to institutionalize the links and responsibilities of these various departments.  As noted by the UNICEF Innocenti Research Centre,

it is not usually possible to bring all matters covered by the [Convention] under one government agency, because the actions of more or less all government agencies impact upon children’s lives.  Past experience has given visibility to the dangers of the marginalization which might result from giving responsibility for children’s policy to a single unit…[256]

 

            The newly established implementation working group would accordingly coordinate activities, policies and laws for children’s rights issues across government – the Departments of Justice, Citizenship and Immigration, Human Resources and Skills Development, Social Development, Public Safety and Emergency Preparedness, Canadian Heritage, Indian and Northern Affairs, Foreign Affairs, and the Canadian International Development Agency – in order to ensure accountability for all government actions affecting children.  The Committee would be interested in seeing such an implementation working group housed within the Privy Council Office, as the body most linked to interdepartmental cooperation efforts.  However, if this should prove impractical, the Committee suggests that this working group be chaired by the Department of Justice, as the Ministry with the closest links to legislation touching all aspects of children’s rights across Canada.

During its fact finding missions in Europe, the Committee noted that numerous countries have established similar coordinating departments to more effectively implement their Convention obligations.  For example, Sweden’s Ministry of Health and Social Affairs has a Coordination Secretariat whose role is to work at a general level to coordinate processes so as to ensure that the perspective of the child is reflected in all levels of government policy, as well as to prepare Sweden’s country report to the UN Committee.[257]  England also has a cross departmental Cabinet Subcommittee on Domestic Affairs (Children’s Policy) that consists of representatives from all departments that meet regularly to ensure cross-departmental implementation of the Convention in England.[258]  Judy Finlay, Ontario’s Child Advocate, emphasized the need for federal leadership in this regard, stating that

we need an office internal to the federal government to implement operationally the National Plan of Action and the Convention.  We are provincial authorities.  We monitor and ensure adherence to provincial and federal legislation that touches our children only provincially, but without coordinated and centralized leadership there is no meaningful national commitment to the principles and the objectives of the convention.[259]

 

b)  Specific Roles of the Implementation Working Group

Witnesses recommended that the implementation working group have multiple roles of coordination and implementation; monitoring; promotion of Canada’s National Plan of Action, A Canada Fit for Children; and of ensuring enhanced visibility for both children and children’s rights.

 

i)  Child Impact Analyses – Assessing Legislation through a Children’s

Rights Lens

Following up on these recommendations, the Committee believes that the implementation working group should be entrusted with primary responsibility for ensuring that all federal legislation conforms with Canada’s obligations under the Convention on the Rights of the Child.  The working group should undertake extensive review of all existing and proposed legislation using the Convention as a checklist.  As stated by the Committee on the Rights of the Child, this review should

consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights.  The review needs to be continuous rather than one-off, reviewing proposed as well as existing legislation.[260]

Witnesses such as Professor Katherine Covell emphasized that in order to achieve this aim, the implementation working group should develop a child-based analysis for its approach to legislation and policy.  This would mean viewing legislation through a children’s rights lens – conducting a “child impact assessment” to determine the potential effects that any proposed legislation could have on children.  The Committee on the Rights of the Child describes this process:

Ensuring that the best interests of the child are a primary consideration in all actions concerning children (art. 3 (1)), and that all the provisions of the Convention are  respected in legislation and policy development and delivery at all levels of government demands a continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation).[261]

The Committee believes that adopting such a checklist approach could work to ensure that children’s rights and Canada’s international obligations under the Convention are actually enforceable in Canadian law.  Although not necessarily apparent at first glance, almost every area of government policy and law affects children to some degree – consider the example of health, environmental, and economic legislation.  As stated by the UNICEF Innocenti Research Centre in its Digest on monitoring bodies for children’s rights, “there is no such thing as a child-neutral economic policy”.[262]

 

      ii)  Ongoing Consultations

Based on criticisms of the current consultation process in Canada, the Committee believes that another role of the implementation working group should be to carry out ongoing consultations with the provinces, territories, and stakeholders – including children – with the aim of ensuring that Canada’s laws continue to comply with our Convention obligations.  The working group would take on the role of coordinator, organizing consultations among relevant government bodies to ensure that the provinces are aware of their obligations and the legislative and policy solutions available.  The Committee notes that in a federal system, networks often work better than other models.  What is needed is a system to enhance collaboration.  The challenge is to institutionalize this process.[263]

Witnesses emphasized that establishing the implementation working group is a necessary response to the criticisms of the Committee on the Rights of the Child concerning the Continuing Committee or any other body’s ability to effectively coordinate respect for children’s rights in Canada:

[T]he Committee remains concerned that neither the Continuing Committee of Officials on Human Rights nor the Secretary of State for Children and Youth is specifically entrusted with coordination and monitoring of the implementation of the Convention.

 

The Committee encourages the State party to strengthen effective coordination and monitoring, in particular between the federal, provincial and territorial authorities, in the implementation of policies for the promotion and protection of the child… with a view to decreasing and eliminating any possibility of disparity or discrimination in the implementation of the Convention.[264]

           

                  iii)  Reporting to the United Nations

Having already emphasized the need for a streamlined, more efficient and transparent process in the production of Canada’s reports to the Committee on the Rights of the Child and all UN treaty bodies, the Committee notes that Canada’s next report under the Convention on the Rights of the Child is due January 11, 2009.  The government should soon begin consultations for this momentous task, given that Canada’s last report took approximately 3 years to develop.

Responding to the UN Committee and witnesses’ concerns, the Committee suggests that, when established, the implementation working group for children prepare the federal portion of Canada’s country report to the Committee on the Rights of the Child, and work closely with the Continuing Committee to assist as needed during consultations with the provinces and territories.  The working group would be uniquely situated to respond to this demand given its ongoing consultations with other jurisdictions and stakeholders. 

The Committee emphasizes that the implementation working group should also be mandated to include children in the preparation of the country report in order to arrive at a better understanding of the children whose rights are most directly affected by the policies and legislation under discussion.  This could take place through ongoing consultations and the establishment of direct mechanisms during preparation of the report to facilitate dialogue.

However, the need to streamline and simplify does not end with Canada’s own preparation of its country report.  The OHCHR has recognized that its own demands are onerous and is currently examining how best to streamline UN treaty bodies’ process.  Every treaty body currently faces extreme backlogs in terms of their receipt and examination of country reports and is falling behind.  In 2004, Canada donated $5 million over 3 years in core funding to the OHCHR to assist it in standardizing and streamlining this reporting process and in October 2005 it donated another $3 million.  Although these discussions are ongoing, one of the immediate results has been the division of the Committee on the Rights of the Child into two chambers.  In 2006, the UN Committee will consider reports in two parallel chambers of 9 Members each to clear up the backlog of reports.

By making this donation, Canada has already begun to assist the reform process.  The Committee supports reinforcing the positive direction that the OHCHR has taken to ensure the establishment of a permanently simplified reporting procedure that allows for both in-depth exploration of individual country implementation of the Convention, and eases the burden on States Parties which currently have to spend years preparing their reports. 

Finally, the Committee suggests that the implementation working group be charged with preparing the follow-up Government Response to the UN Committee’s Concluding Observations, to be tabled in Parliament.  This response should detail the federal government’s reaction and provide answers for each of the UN Committee’s suggestions and recommendations.

Ultimately, the Committee echoes the words of Professor Kay Tisdall of the University of Edinburgh, who said that reporting to the UN Committee will be “an empty exercise”[265] unless Canada puts enough effort into the entire process.

 

            c)  The Need for an Education Strategy

In addition to this focus on legislation and reporting requirements, witnesses emphasized that the implementation working group should work towards awareness-raising, and create a “well-resourced, comprehensive national communication strategy” [266] to ensure dissemination of information about children’s rights to children, advocates, decision-makers, professionals, front-line workers, and the public at-large.  The Committee believes that this strategy should be broad in scope, and include distribution of information on governmental and independent bodies involved in implementation of the Convention and how to contact them.  The working group should ensure that such information is freely distributed in schools, as the Committee discovered that few children know about the resources and institutions available to them.  Joelle LaFargue, one of the young people who testified before the Committee in New Brunswick, stated that

When I have trouble, and I feel that a right is being infringed, I usually go to either a teacher or the guidance counsellor.  I was going to mention the Human Rights Commission, but I do not ever remember knowing how to get hold of them, other than maybe looking them up in the phone book.  Maybe that should be a more presentable thing that if you have trouble and someone is infringing upon your rights, there should be more information available that you can use this association… there is no information around school or around where I could have easy access to it. That should be an important thing.[267]

 

            As is highlighted in the Innocenti Digest on monitoring bodies under the Convention,

Rights have little relevance if nobody knows about them or understands them.  Human rights institutions for children play a crucial role in informing children, governments, and the public about children’s rights, how those rights can be enforced, and why those rights are important.  A measure of their success is the extent to which the institutions themselves are visible and accessible to children.[268]

 

The Committee suggests that the working group also ensure wide distribution of the Convention itself, both in a child-friendly version[269] and in many languages, to ensure that the text of the Convention is made as widely available as possible to the children and families most marginalized in Canadian society.[270] 

Witnesses in Canada and abroad, as well as the Committee on the Rights of the Child, emphasized that raising awareness about children’s rights issues is an absolute obligation under article 42 of the Convention.  Not only does this obligation require information-sharing about the Convention itself, but it necessitates widespread dissemination of Canada’s country report, the UN Committee’s Concluding Observations, and the Government Response to all interested stakeholders.  The Committee suggests that the newly established implementation working group consider the example of Sweden, which puts its country report in edited book format after submission to the UN, distributing copies to NGOs and local authorities as a basis for future discussion.[271]

 

d)  The Results

The benefits of establishing such an implementation working group have been made clear to the Committee.  International case studies confirm that

establishing children’s rights-focused permanent institutions and structures within governments, has been critical to the pursuit of coordinated implementation of the [Convention] – and to the [Convention] becoming a visible reference for the public at large.  With a more coordinated approach, the involvement of civil society becomes more likely, as does the ability to incorporate the child’s perspective in policy-making.  These mechanisms have helped place children on the national agenda, promoted articulation of child related activities, developed a strategy for the realization of children’s rights and assessed progress.[272]

 

As well, the Committee notes that mandating a role for children’s involvement in the implementation working group’s activities is crucial to the effective application of children’s rights and the rights-based approach in Canada

 

RECOMMENDATION 4 

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.

 

      3.  Strengthening the Voluntary Sector

Nearly every witness appearing before the Committee, both at home and abroad, emphasized the vital role played by the voluntary sector with respect to ensuring adequate and effective implementation of children’s rights in Canada.  Organizations and coalitions such as the National Children’s Alliance, the Child Welfare League of Canada, the Canadian Coalition for the Rights of Children, Save the Children Canada, UNICEF Canada, and the Geneva-based NGO Group made it clear to the Committee that non-governmental organizations are ideally placed to monitor the government’s use of the Convention and its application on the ground, comprising, as they do, a diversity of organizations representing a wealth of expertise, experience, and different forms of service provision.

However, these same witnesses noted that despite the increasingly important role played by NGOs in protecting children’s rights in Canada and around the world, this sector is often unable to live up to the task.  Significantly underfunded and seldom acting as a cohesive body towards the same goals, the voluntary sector is often unable to muster the coordination necessary to ensure effective outside monitoring of children’s rights in Canada

 

a)  Lack of Coordination and Underfunding – The Risk to Children’s Rights

The NGO Group was the first body to bring the inadequacy of the voluntary sector to the Committee’s attention.  Representatives from the Group emphasized that Canada has a dearth of NGOs in the children’s rights sector.  The problem is not necessarily the small number organizations working on children’s rights, but their lack of consolidation, thus preventing systematic monitoring of children’s rights.[273] 

Witnesses cited the Coalition for the Rights of the Child as a prime example of the fact that Canadian NGOs do not lack the will to coordinate their efforts, but lack the funding to do so.  A coalition comprised of non-governmental organizations from across Canada, the Coalition for the Rights of the Child is

a coalition, not an entity in itself or a stand-alone organization, and its purpose is to raise awareness about the convention… They share information about promotional materials.  They received a little bit of money from [Human Resources and Skills Development] to do a variety of workshops across Canada to get communities to look at community legislation in terms of how it affects children through the lens of children’s rights… Within a variety of organizations, whether the YM-YWCA or the teachers’ college, they were able to mobilize a tremendous amount of energy about the Convention on the Rights of the Child.[274]

And yet witnesses emphasized that this Coalition is unable to operate effectively.  Even officials at Health Canada commented that the Coalition’s “funding is project-based and tenuous.”[275]  The Coalition’s prime asset – the fact that it is a coalition – is one of the primary obstacles, as it cannot receive funds as an entity.  Only its various components receive money for their various projects and mandates.  The government prefers to fund technical and service organizations because they are specifically project-based, with time-limited and easier to manage funding proposals.[276]

 

b)  The Need to Develop Capacity Building and Funding for the Voluntary

Sector

Responding to these concerns, the Committee notes a need for the federal government to work with the NGO community – and in particular, the Coalition for the Rights of the Child – to develop the mechanisms and funding necessary to foster an effectively functional and cohesive voluntary sector.  The Committee believes that capacity-building in the NGO community is necessary to enhance accountability and ensure real implementation of the Convention on the Rights of the Child in Canada.

Witnesses noted that one of the first steps in this process will be to facilitate a coordination mechanism to identify gaps in services.  This point was highlighted by Leah Levac of Partners for Youth and the New Brunswick Youth Action Network:

We need to establish who holds the responsibility for some of these issues, and how we can specifically designate, because arguably when the reverse happens, we, being the voluntary sector, pop through where there is an identified need…  You see this need, you want to respond to it, and this is what you do.  You see this need and you cannot look at it from a bird’s eye view.  There needs to be a coordinated mechanism in place to respond to and identify where the service gaps are.[277]

The Committee notes that another key component of capacity-building is adequate funding for the NGO sector.  The NGO Group and almost every other non-profit agency witness emphasized that so many organizations are doing good work, but that they are not getting the money needed. 

Witnesses commented that what is needed is continuity and sustainability.  Current issues come in “fads”, and if funding is only given in response to them – rather than proactively – nothing can be done to change culture and protect children’s rights in the long term.[278]  The NGO Group noted that dialogue between NGOs and the donor community is necessary so that continuity can be assured beyond the “scandal of the moment”.[279]  Such dialogue can only serve to encourage collaboration and networking to more effectively protect children as a whole.

     

      4.  Broader Issues of Funding

The question of money is also of great importance to the establishment of any new department or institution.  On the basis of months of testimony, the Committee has concluded that the federal government should maximize resources dedicated to the benefit of children in order to effectively comply with its Convention obligations.  The Committee notes that the requirements outlined in articles 42 (dissemination and awareness-raising) and 44(6) (dissemination of country reports) of the Convention cannot be fulfilled without the financial resources necessary to see them through.  As well, neither the implementation working group nor the Children’s Commissioner will be able to operate effectively without adequate funding for their consultations, education campaigns, investigations, and other roles.

Consequently, the Committee suggests that the federal government establish a mechanism to provide adequate funding for effective implementation of Canada’s international human rights treaties, and the Convention on the Rights of the Child in particular.  This funding should be put towards ensuring the effective implementation of the recommendations concerning the implementation working group, the Children’s Commissioner, as well as pre- and post-ratification consultations and mechanisms with respect to the incorporation of all international human rights treaties in Canada.

 

D.  CONCLUSIONS

This Committee’s mandate was to examine and report upon Canada’s international obligations with respect to the rights and freedoms of children – in particular, the Committee concentrated on national obligations under the Convention on the Rights of the Child, and whether Canada’s law, policy and practice can be said to comply with those requirements.  Key to this process was a focus on implementation.  Based on the comments and criticisms of the Committee on the Rights of the Child, as well as months of hearings in Canada and abroad, the Committee has come to the realization that there can be no full compliance, and consequently, no real and comprehensive protection of children’s rights without effective implementation.  Responding to concerns expressed throughout its hearings, the Committee attempted to address “the gulf between the rights rhetoric and the realities of children’s lives”[280] through this Interim Report.

The Committee framed its deliberations within the context of the rights-based approach set out in the Convention, working from the starting point that children are one of the most inherently vulnerable and unrepresented groups in Canada.  Rather than focussing on the necessity of protecting and responding to specific needs, the Committee approached its study through a more sustainable lens to find solutions that would ensure respect for children’s rights at a more holistic level throughout Canadian society.  This led to the recommendation for an interdepartmental implementation working group to coordinate implementation of the Convention throughout the federal government, as well as the establishment of a monitoring mechanism to ensure effective implementation of those rights, and government accountability, through Parliament, to the public as a whole, and to children in particular.  Throughout its recommendations, the Committee highlighted the absolute necessity of facilitating child involvement in all mechanisms affecting their rights.  The voices, not simply the choices, of children must be heard at a national level.

Beyond the issue of children’s rights, this study further emphasized the Committee’s observations made in Promises to Keep about the inefficiency and inadequacy of Canada’s mechanisms for ratifying and implementing international human rights treaties more generally.  Only when Canada truly lives by its promises of compliance can this country be assured of living up to its international human rights obligations.  The Committee believes that only by bolstering the effectiveness and accountability of its ratification process can Canada truly claim to remain a leader in the human rights field.  A reputation that extends beyond its own borders but does not apply at home is not one worth having. 


CHAPTER SIX – FUTURE PLANS: THE FINAL REPORT

In future months, the Committee will continue to study the issue of children’s rights and Canada’s obligations, focusing on specific issues that have been signalled as issues of concern to date, for example: the medically fragile, the disabled, Aboriginal children, migrant children, minority children, sexually exploited children, children in conflict, and those caught in the child welfare or youth criminal justice systems.  In continuing its in-depth examination of these issues, the Committee will attempt to respond to concerns that it has heard expressed across Canada in order to ensure respect for and effective implementation of specific articles of the Convention to benefit all children, in particular those most marginalized in our society.  The final Report will be tabled by March 31, 2006.

A brief outline of the issues that the Committee expects to study as a result of the concerns raised by the Committee on the Rights of the Child and other witnesses during the Committee’s hearings is as follows:

 

A.  HEALTH

            Health is a significant issue in the children’s rights protection framework.  Issues brought before the Committee included:

·         There is no national standard of services and treatment programs provided to children with autism.  After a cut-off age that varies between provinces, parents are often left to cover the costs – a situation which results in children being denied therapy.[281]

·         Doctors are quick to diagnose Attention Deficit Hyperactivity Disorder and prescribe drugs to agitated children rather than looking into alternatives to medical diagnosis of such behaviour.[282]

·         Obesity in children is on the rise, due to the fact that too many children are not getting the physical activity or proper nutrition required of a healthy lifestyle.[283]

·         Disabled children are a particularly marginalized segment of the Canadian population whose voices are not heard and whose needs are inadequately met by governments across Canada.[284]

 

B.  ABORIGINAL CHILDREN

            Many issues were raised with respect to Aboriginal children and youth in Canada.

·         The aftershock effects of Canadian history are still apparent and it is imperative that policy makers devote significant attention to improving the lives and well-being of these particularly marginalized children.[285]

·         Aboriginal children are significantly overrepresented in the child welfare and youth criminal justice systems.  Adding to problems in this regard is the fact that many non-Aboriginal social and other front-line workers are not trained to understand Aboriginal language and culture, resulting in the further marginalization of the children in their care.[286]

·         Aboriginal children face elevated poverty rates.  This situation is not improved by the fact that the government does not work to ensure the provision of adequate funds, services, and proper housing to Aboriginal communities.[287]

·         The suicide and diabetes rates among Aboriginal youth in Canada are among of the highest in the world.[288] 

·         Aboriginal children living off reserve or without status are provided with fewer resources, programs, and services than their on-reserve, status counterparts.[289]

·         The language and culture of Aboriginal children have been eroded on and off- reserves across Canada.[290] 

 

 C.  MINORITY CHILDREN

The issue of minority children is one of great significance to the children’s rights framework.  Issues brought before the Committee included:

·         Concern about the lack of data, and the resulting knowledge gap with respect to vulnerable children, including visible minorities.[291]

·         The varying caliber and provision of health care and other services provided to minority communities.[292]

·         Some minority groups have access to specialized education, while others are denied such rights.[293]

 

D.  MIGRANT CHILDREN

            Children fleeing root causes of migration, such as war, sexual exploitation, and persecution, arrive at Canada’s borders regularly – both with and without their families.    Witnesses appearing before the Committee expressed concern that:

 

E.  SEXUALLY EXPLOITED CHILDREN

            The sexual exploitation of children is an unresolved issue in Canada, ranging from issues related to trafficking in children to sexual exploitation over the internet.  Witnesses appearing before the Committee expressed concern that:

·        The sexual exploitation of children through prostitution is a significant issue in Canada given the large numbers of children and youth living on the street.  Many attempts have been made by the federal government and provinces to deal with the commercial sexual exploitation of youth, including amendments to the Criminal Code ensuring harsher penalties for those who exploit children, and Alberta’s Protection of Children Involved in Prostitution Act[300]which allows authorities to detain a child suspected of being in need of protection due to involvement in prostitution.

·        Exploitation of children over the internet has become an issue of grave concern in this digital age.  Law enforcement agencies are taking on an active role in combating this crime, including the establishment of tiplines to facilitate reporting.

·        The internet has also led to increasing concerns about possession and distribution of child pornography. 

·        Bill C-2, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act,[301] received Royal Assent on July 20, 2005, but has not yet come into force.  This series of amendments strengthens provisions dealing with sexual exploitation of children, facilitates child victim testimony, strengthens child pornography provisions, and creates a new voyeurism offence.

·        Trafficking in children for the purposes of sexual exploitation is also an issue of significant concern, whether with or without movement across borders.  Through the Immigration and Refugee Protection Act, as well as the federal government’s proposed amendments to the Criminal Code to deal with trafficking in persons, the government is beginning to underscore the extent of the problem and the need to deal with it effectively.

 

F.  CHILDREN IN CONFLICT

            Children in conflict are an issue of significant concern within the children’s rights framework.  Issues brought before the Committee included:

·         There is a concern that the security and rights of children threatened by armed conflict are not a top priority, and that a weak human rights system and the UN system have failed to effectively protect children from the most egregious abuses during long periods of armed conflict.[302]

·         AlthoughCanada has ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, Canada was required to explain itself pursuant to article 3 of this Optional Protocol, as Canada permits voluntary recruitment into the Canadian Armed Forces from the age of 16 years.  This age is lower than in many other countries.

·         Concern about the challenge of ensuring cultural continuity and participation in situations of armed conflict.[303]

 

G.  CHILD PROTECTION

            While child protection legislation is under provincial jurisdiction, it is one that lies at the heart of the Convention on the Rights of the Child and is essential to the Committee’s understanding of children’s rights in Canada.  Witnesses appearing before the Committee expressed concern that:

 

H.  YOUTH CRIMINAL JUSTICE

            Despite changes to legislation, the youth criminal justice system continues to be a focus of public concern.  Witnesses appearing before the Committee expressed concern that:

 

I.  CORPORAL PUNISHMENT

The debate concerning corporal punishment and children in Canada appears to have taken on new dimensions in recent years.  At one end of the spectrum, advocates demand that the government deem section 43 of the Criminal Code unconstitutional, leading to an absolute ban of corporal punishment.  At the opposite end, others argue that section 43 should be retained to protect parental and family autonomy.  Witnesses appearing before the Committee expressed concern that:

·         The harms caused by corporal punishment of children can be serious, leading to trauma; loss of trust in parents; poor relationships between parent and child; behavioural problems, including violence by the child to others; and physical harm.

·         There is a fine line between corporal punishment and physical abuse. To address this, the Supreme Court of Canada in Canadian Foundation for Children, Youth, and the Law v. Canada (A.G.)[309]emphasized the limitations to defensible corporal punishment, pursuant to section 43 of the Criminal Code.

·         Bill S-21, An Act to Amend the Criminal Code (Protection of Children), which received second reading in the Senate on March 10, 2005 and is currently under consideration by the Standing Senate Committee on Legal and Constitutional Affairs, proposes repeal of section 43 of the Criminal Code.

·         Education is a key factor in limiting corporal punishment through programs to teach the public about alternate methods of discipline, with a focus on the merits of positive discipline, as well as the harms of physical discipline.


[120] With reservations to articles 21 and 37(c) of the Convention.  For a further discussion of these reservations, see Part A3 of this Chapter.

[121] Dryden testimony.

[122] See statements of Jeffrey Wilson in footnotes 178 and 34.

[123]Promises to Keep, p. 20; Stephen Toope, “Inside and Out: The Stories of International Law and Domestic Law”, (2001) 50 University of New Brunswick Law Journal , p. 15; Pushpanathan v. Canada, [1998] 1 S.C.R. 982.

[124][1999] 2 S.C.R. 817.  In this case, Baker, an illegal immigrant was ordered deported from Canada.  She appealed the decision on humanitarian and compassionate grounds, partially due to the fact that her Canadian-born children would be left behind without the care of their mother.  Citizenship and Immigration Canada affirmed the deportation decision without providing reasons and the issue was then sent for judicial review and was later appealed to the Supreme Court of Canada.

[125]Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), p. 330.

[126] Baker, para. 70.  See also Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 and R. v. Keegstra, [1990] 3 S.C.R. 697.

[127] Cotler testimony, relying on Dickson C.J. in Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313.

[128]Kathleen Marshall, Scotland’s Commissioner for Children and Young People, testimony before the Committee, October 12, 2005.

[129]Ibid.

[130] Baker, para. 70; Dolin, p. 8-9.

[131] Dolin, p. 8.

[132]The Honourable Justice Jacques Chamberland, International Bureau for Children’s Rights Conference, Making Children’s Rights Work: National and International Perspectives, Montreal, November 19, 2004; Jutta Brunnée and Stephen Toope, “A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts” (2002) 40 The Canadian Yearbook of International Law, p.3.

[133] Jean-François Noël, Director General, International Bureau for Children’s Rights, testimony before the Committee, February 21, 2005.

[134] Weiser testimony.

[135] Holmes testimony, 2001.

[136] R.S.C. 1985, c. N-5.

[137] LaViolette, p. 61.

[138] Eileen Sarkar, Assistant Deputy Minister, Department of Canadian Heritage, testimony before the Committee, April 18, 2005.

[139] UN Doc. CRC/C/15/Add.215, Committee on the Rights of the Child, Concluding Observations, para. 2.

[140] Yalden testimony.

[141]Ibid.

[142] Promises to Keep, p. 24.

[143] Ibid., p. 31.

[144] Deirdre Kent, Counsellor, Canadian Mission in Geneva, testimony before the Committee, January 27, 2005; OHCHR, “Enhancing the Human Rights Treaty Body System: The Treaty Bodies’ Response to the Secretary-General’s Agenda for Further Change” available at: http://www.ohchr.org/english/bodies/treaty/reform.htm

[145] R.S.C. 1985, c. C-46.

[146] Canadian Foundation for Children, Youth, and the Law v. Canada (A.G.). (2004) 1 S.R.C. 76.

[147] See also Promises to Keep, p. 24 and 31.

[148] Elaine Petitat-Côté, IBFAN, and Hélène Sackstein, IAW, NGO Group for the Convention on the Rights of the Child, testimony before the Committee, January 28, 2005.

[149] Anne Bayefsky, Professor, Department of Political Science, York University, testimony before the Committee, June 4, 2001.

[150] Norman Moyer, Assistant Deputy Minister, Canadian Identity, Chair of the Continuing Committee of Officials on Human Rights, testimony before the Committee, June 11, 2001.

[151]Sarkar testimony.

[152] Promises to Keep, p. 24.

[153] 1015 U.N.T.S. 297.

[154] Jane Stewart, Acting Executive Director for the Employment Sector, and Frans Roselaars, Director of the Infocus Programme on the Elimination of the Worst Forms of Child Labour, International Labour Office, testimony before the Committee, January 27, 2005.

[155] Committee on the Rights of the Child, Concluding Observations, paras. 50-51.

[156] See Part A3(b) of this Chapter for a discussion of these justifications.

[157] Susan Reid, Associate Professor, Department of Criminology and Criminal Justice, Director, Centre for Youth at Risk, St. Thomas University, testimony before the Committee, June 14, 2005.

[158] Ibid.

[159] UNICEF Innocenti Research Centre, Summary Report: Study on the Impact of the Implementation of the Convention on the Rights of the Child (2004), p. 16, available at: http://www.unicef-icdc.org/publications/pdf/CRC_Impact_summaryreport.pdf

[160] R.S.S., O-4.

[161]R.S.O. 1990, c. C-11

[162]“McGuinty Government Moves to Make Ontario’s Child Advocate Independent” News Release, March 8, 2005.

[163] R.S.Q., c. P-34.

[164] R.S.N.S. 1989, c. 327.

[165] R.S.N.B., O-5.

[166] R.S.N.B. C-2.5.

[167] Bernard Richard, Ombudsman for New Brunswick, testimony before the Committee, June 14, 2005.

[168]Linda C. Reif, The Domestic Application of International Human Rights Law in Canada: The Role of Canada’s National Human Rights Institutions, Paper prepared for the Department of Justice, 2005, p. 31-32 and 49-51.

[169] Williams testimony.

[170] The Honourable Irwin Cotler, Minister of Justice, Raoul Wallenberg Day, International Human Rights Symposium, York University, January 17, 2005.

[171] Cotler testimony.

[172] Vandergrift testimony.

[173] Williams testimony.

[174] Irit Weiser, “Effect in Domestic Law of International Human Rights Treaties Ratified Without Implementing Legislation” in Canadian Council of International Law, The Impact of International Law on the Practice of Law in Canada: Proceedings of the 27th Annual Conference of the Canadian Coucil of International Law, Ottawa, October 15-18, 1998 (Cambridge: Kluwer Law International, 1999), p. 132.

[175] Holmes testimony, 2001.

[176] Judy Pearsal ed., Concise Oxford English Dictionary: Thumb Index Edition, 10th ed. Revised (Oxford: Oxford University Press, 2002).

[177] Oran Young, Compliance and Public Authority (Baltimore: Johns Hopkins University Press, 1979), p. 172.

[178]Wilson testimony.

[179] Cotler testimony.

[180] Dosanjh testimony.

[181]Yalden testimony.

[182] Cotler testimony.

[183] Dosanjh testimony.

[184] Christine Brennan, Supervisor of Youth and Senior Services, Office of the Ombudsman of Nova Scotia, testimony before the Committee, June 16, 2005.

[185] Richard testimony.

[186] Megan Fitzgerald, testimony before the Committee, June 13, 2005.

[187] Ryan Bresson, testimony before the Committee, June 14, 2005.

[188] Katie Cook, testimony before the Committee, June 14, 2005.  Professor Al Aynsley-Green, England’s Commissioner for Children, made similar comments, stating that children tend to know that they have rights, if not their Convention rights per se.

[189] UN Committee on the Rights of the Child, General Comment No. 5, para. 66.

[190] Chamberland, International Bureau for Children’s Right Conference. In R. v. Sharpe, [2001] 1 S.C.R. 45, the Supreme Court noted Canada’s commitment to protecting children, as demonstrated by its ratification of the Convention on the Rights of the Child, the Convention’s nearly universal membership, and other measures designed to protect children’s rights in Canadian law; in D.B.S. v. S.R.G., [2005] ABCA 2, the Alberta Court of Appeal ruled that the Federal Child Support Guidelines must be made consistent with the Convention; in Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 228 D.L.R. (4th) 63, in which the Quebec Court of Appeal stated that the Convention could be used as an interpretive tool; in U.C. v. Alberta (Director of Welfare) (2003), 223 D.L.R. (4th) 662, the Alberta Court of Appeal relied on the Convention to give weight to the best interest of the child and to give due weight to the informed opinion of a child; in L.D. c. A.P., [2000] J.Q. No. 5221, the Quebec Court of Appeal held that that although the Convention has not been incorporated into domestic law, the court may still use the values expressed in it to interpret the law; even in Canadian Foundation for Children, Youth, and the Law v. Canada (A.G.), although the Supreme Court ultimately upheld section 43 of the Criminal Code, exempting the use of reasonable force by way of correction from criminal sanctions, the court relied on the Convention to determine the meaning and scope of “best interests of the child”.

[191]The Honourable Minister Irwin Cotler, International Bureau for Children’s Rights Conference, Making Children’s Rights Work: National and International Perspectives, Montreal, November 18, 2004.

[192] Williams testimony.

[193] Richard testimony.

[194] Joanna Harrington, Professor, Faculty of Law, University of Alberta, testimony before the Committee, September 26, 2005.

[195] For a more complete description of the National Interest Analysis, please see: Parliament of Australia, Joint Standing Committee on Treaties, “Committee Establishment, Role, and History”, available at: http://www.aph.gov.au/house/committee/jsct/ppgrole.htm

[196] Harrington, p. 41.

[197] Among the countries investigated by the Committee, Norway went the furthest in this regard.  A dualist country that abides by a mix of common law and civil law traditions, in 2003, the Norwegian government incorporated the Convention on the Rights of the Child and its two Optional Protocols into Norway’s Human Rights Act.  This law states that the Convention – as well as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and the European Convention on Human Rights – shall be binding in Norwegian law, and that these international instruments “shall take precedence over any other legislative provisions that conflict with them.”  This is in addition to having strengthened reference to the Convention on the Rights of the Child’s principles in other domestic child-related legislation. 

                However, having taken such a strong step to fully incorporate the Convention into domestic law, Norwegian officials were quick to emphasize to the Committee that this is perhaps not a realistically practical gesture.  While it raises awareness and the profile of the Convention in Norway, and may restrict Parliamentary or government discretion, it has yet to demonstrate a strong practical impact on children’s rights in the country – particularly given the general nature of the standards outlined in the Convention.  As stated by Haktor Helland, Director General at the Norwegian Ministry of Children and Family Affairs, “I don’t think it will have any practical implication for child policy.”  (See testimony of Haktor Helland, Director General, Norwegian Ministry of Children and Family Affairs; Petter Wille, Deputy Director General, Global Section, Norwegian Ministry of Foreign Affairs; and Jon-Kristian Johnsen, Director, Childwatch International Research Network, testimony before the Committee, October 14, 2005.)

[198] Inter-Parliamentary Union, Child Protection: A Handbook for Parliamentarians Handbook for Parliamentarians No. 17 (Geneva: Inter-Parliamentary Union and UNICEF, 2004), p. 26-27.

[199] Mike Comeau, Director of Policy and Planning, New Brunswick Department of Justice, testimony before the Committee, June 14, 2005.

[200] Vandergrift testimony.

[201] Mackinnon testimony.

[202] Ken Norman, Professor, University of Saskatchewan, testimony before the Committee, June 11, 2001.

[203] See comments of Maxwell Yalden and the Committee on the Rights of the Child in its Concluding Observations, Chapter 4 Part B2(a).

[204] As an example, while the Convention on the Rights of the Child requires periodic country reports every 5 years, the Convention Against Torture and the Convention on the Elimination of All Forms of Discrimination against Women require reports every 4 years.

[205] Yalden testimony.

[206] Harrington, p. 41.

[207] UN Committee on the Rights of the Child, General Comment No. 5, para. 71.

[208] Swedish network of Parliamentarians, testimony before the Committee, January 31, 2005.

[209] Inter-Parliamentary Union, p. 22.

[210] UN Committee on the Rights of the Child, testimony before the Committee, January 28, 2005.

[211] Department of Justice Act, R.S.C. 1985, c. J-2, s. 4.1; and Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 3

[212] Reference re Public Service Employee Relations Act (Alberta).

[213]Harrington testimony.

[214] Harrington, p. 40.

[215] Ibid., p. 43.

[216] R.S.Q. c. C-12.

[217] Pierre Bosset, Michel Coutu, Muriel Garon, François Fournier “Après 25 ans: La Charte Québécoise des droits et libertés – Review of Recommendations” Commission des droits de la personne et des droits de la jeunesse, 2003.

[218] UN Committee on the Rights of the Child testimony.

[219] Peter Leuprecht, Professor, Université du Québec à Montréal, testimony before the Committee, February 21, 2005.

[220] UN Committee on the Rights of the Child, Concluding Observations, paras. 14-15.

[221] UN Committee on the Rights of the Child, General Comment No. 2, para. 1.

[222]UN Doc. A/RES/48/134 (1993).

[223] Kiro testimony.

[224] For a more detailed analysis of the essential powers and resources needed by an effective Commissioner’s Office, see Per Miljeteig, Children’s Ombudsman vol. 1, Save the Children Norway, April 2005, p. 5-7.

[225] UN Committee on the Rights of the Child, General Comment No. 2, para. 11.

[226] Reidar Hjermann, Norwegian Ombudsman for Children, testimony before the Committee, October 14, 2005.

[227] Tisdall testimony.

[228] Wilson testimony, and Nicholas Bala, Professor, Faculty of Law, Queen’s University, testimony before the Committee, December 13, 2004.

[229] Rita Karakas, Executive Director, Save the Children Canada, testimony before the Committee, February 7, 2005.

[230] Linda C. Reif, “The Ombudsman, Good Governance and the International Human Rights System” in International Studies in Human Rights vol. 79 (Leiden: Brill Academic Publishers, 2004), p. 318.

[231] Judy Finlay, Deborah Parker-Loewen, and Janet Mirwaldt, Canadian Council of Provincial Child and Youth Advocates, “Submission to the Senate Standing Committee on Human Rights”, Brief submitted to the Committee, February 21, 2005, p. 13.

[232] Inter-Parliamentary Union, p. 37.

[233]Marshall testimony.

[234] Kathleen Marshall, the new Scottish Commissioner for Children and Young People, appointed in April 2004, took a practical approach to her new position by focusing on interviews and focus groups with children to identify the key issues of importance to children’s rights in Scotland, as well as ensuring that the Convention on the Rights of the Child is reflected in Scottish law, policy, and practice.  By contrast, Professor Aynsley-Green, who became England’s first Children’s Commissioner in July 2005, approached his mandate by identifying eight areas of policy concern in England: children and society (including commercialization and the media), bullying, asylum and immigration, youth justice, children with disabilities, minority children, vulnerable children, and health).  It is interesting to note that England’s Commissioner has no specific function to review the adequacy of law or policy, while reviewing all laws, policy, and practices that affect children and young people is a statutory function of the Scottish Commissioner.  See Aynsley-Green and Marshall testimony, and Alex Callaghan, National Children’s Bureau, “Children’s Commissioners in the United Kingdom” Highlight No. 217, May 2005.

[235] Dryden testimony.

[236] UN Committee on the Rights of the Child, General Comment No. 2, para. 18.

[237] UNICEF Innocenti Research Centre, Summary Report, p. 11.

[238] UNICEF Innocenti Research Centre, Digest No. 8, p. 7.

[239]Miljeteig, p. 8.

[240] Kiro testimony.

[241] Cindy Blackstock, Executive Director, First Nations Child and Family Caring Society of Canada, testimony before the Committee, February 7, 2005.

[242] Ibid.

[243] Kiro testimony.

[244] Judy Finlay, Ontario Child Advocate, testimony before the Committee, February 21, 2005.

[245] Céline Giroux, Vice President of the Commission des droits de la personne et des droits de la jeunesse of Quebec, International Bureau for Children’s Rights Conference, Making Children’s Rights Work: National and International Perspectives, Montreal, November 18, 2004.

[246] Dryden testimony.

[247] UN Committee on the Rights of the Child, General Comment No. 2, para. 16.

[248] UN Committee on the Rights of the Child, General Comment No. 5, para. 12.

[249] Paula Thomas, Chief Financial Officer, Native Council of Prince Edward Island, testimony before the Committee, June 15, 2005.

[250] MacKay testimony.

[251] Joelle LaFargue, testimony before the Committee, June 14, 2005.

[252] Bridget Cairns, Director, Association of Community Living of Prince Edward Island, testimony before the Committee, June 15, 2005.

[253] Marilyn McCormack, Deputy Advocate, Office of the Child and Youth Advocate, testimony before the Committee, June 13, 2005.

[254] UNICEF Innocenti Research Centre, Digest No. 8, p. 11.

[255]Dryden testimony.

[256] UNICEF Innocenti Research Centre, Summary Report, p. 15.

[257]Carin Jahn, Director, Child Policy, Swedish Ministry of Health and Social Affairs, testimony before the Committee, January 31, 2005; Swedish Ministry of Health and Social Affairs, “Follow-up of the National Strategy to Realise the United Nations Convention on the Rights of the Child in Sweden” Fact Sheet No. 10, June 2001.

[258] Anne Jackson, Director of Strategy, Children, Young People and Families Directorate, England’s Department for Education and Skills, testimony before the Committee, October 10, 2005.

[259] Finlay testimony.

[260] UN Committee on the Rights of the Child, General Comment No. 5, para. 18.

[261] Ibid., para. 45.

[262] UNICEF Innocenti Research Centre, Innocenti Digest No. 8, p. 3.

[263] The Honourable Senator Landon Pearson, UN Secretary General’s Study on Violence Against Children, North American Regional Consultations, June 4, 2005.

[264] UN Committee on the Rights of the Child, Concluding Observations, paras. 10-11.

[265]Tisdall testimony.

[266] Williams brief, p. 5.

[267] LaFargue testimony.

[268] UNICEF Innocenti Research Centre, Innocenti Digest No. 8, p. 1.

[269] See CIDA’s approach to such a version in Appendix G.

[270] UN Committee on the Rights of the Child, General Comment No. 5, para. 67.

[271] Jahn testimony.

[272] UNICEF Innocenti Research Centre, Summary Report, p. 16.

[273] NGO Group testimony.

[274] Dawn Walker, Visiting Expert, Strategic Planning and Analysis, First Nations and Inuit Health Branch, Health Canada, testimony before the Committee, June 6, 2005.

[275] Ibid.

[276] NGO Group testimony.

[277] Leah Levac, Program Manager, Partners for Youth, and Coordinator, New Brunswick Youth Action Network, testimony before the Committee, June 14, 2005.

[278]Representatives from Children in Scotland also noted this issue in the Scottish context during testimony before the Committee, October 12, 2005.

[279] NGO Group testimony.

[280] UNICEF Innocenti Research Centre, Digest No. 8, p. 4.

[281]Peter Dudding, Executive Director, Child Welfare League of Canada, testimony before the Committee, February 14, 2005; Richard testimony; Michele Pineau, Association for Community Living for Prince Edward Island, testimony before the Committee, June 16, 2005.

[282]Richard testimony.

[283] The Honourable Carolyn Bennett, Minister of State (Public Health), testimony before the Committee, May 16, 2005; Lynn Vivian-Book, Assistant Deputy Minister, Newfoundland and Labrador Department of Health and Community Services, testimony before the Committee, June 13, 2005; Levac testimony.

[284]Douglas McMillan, Professor of Pediatrics, IWK Health Centre, testimony before the Committee June 16, 2005.

[285] Blackstock testimony.

[286] Blackstock, testimony; Finlay testimony; Jamie Gallant, President and Chief, Native Council of Prince Edward Island, testimony before the Committee, June 15, 2005.

[287]Yalden testimony; Committee on the Rights of the Child, Concluding Observations, para. 54.

[288] Committee on the Rights of the Child, Concluding Observations, para. 36.

[289] Gallant, testimony.

[290]Ibid.

[291] Covell testimony.

[292]Richard testimony; Pineau testimony.

[293]Yalden testimony.

[294] Agnes Casselman, Executive Director, International Social Service, Canada, testimony before the Committee, March 7, 2005; Jahanshah Assadi, United Nations High Commissioner for Refugees, Representative in Canada, testimony before the Committee, May 2, 2005.

[295] Committee on the Rights of the Child, Concluding Observations, para. 46; Casselman testimony; Assadi testimony.

[296] S.C. 2001, c. 27.

[297] Bill C-49, An Act to amend the Criminal Code (Trafficking in Persons),received third reading in the House of Commons on October 17, 2005, and second reading in the Senate on October 25, 2005.

[298]Assadi testimony.

[299]Assadi testimony.

[300] R.S.A. 2000, c. P-28.

[301] R.S. 2005, c. 32.

[302] Vandergrift testimony.

[303]The Honourable Elizabeth Hubley, Senator of Prince Edward Island, testimony before the Committee, June 15, 2005.

[304]Covell testimony.

[305] Leuprecht testimony.

[306]Gallant testimony.

[307] Finlay testimony.

[308] Article 37(c) of the Convention requires States Parties to detain young offenders in separate facilities from adult offenders.

[309] [2004] 1 S.C.R. 76.


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