Proceedings of the Standing Senate Committee on
Human Rights
Issue 6 - Evidence
OTTAWA, Monday, February 21, 2005
The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to examine and report upon Canada's International obligations in regard to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are here to examine and report on Canada's international obligations with regard to the rights and freedoms of children.
Our first witnesses are Professor Peter Leuprecht, as an individual; and Ms. Suzanne Williams, Managing Director from the International Institute for Child Rights and Development. They are appearing as a panel.
Please proceed.
Mr. Peter Leuprecht, Professor, UQAM: Honourable senators, it is a great pleasure and honour to be once again before this committee. I would like to pay tribute to the remarkable work your committee is doing in favour of human rights.
The subject today is the rights of the child. I hope I am not guilty of unfair discrimination if I pay a special tribute to one senator who has done outstanding work for the rights of the child, Senator Pearson.
As a token of respect for the bilingual character of this country, I will make a short presentation in English and in French.
We all know the question on your agenda, that is, the question of how Canada honours its international obligations regarding the rights and freedoms of the child.
On a previous occasion, I had the opportunity to speak to honourable senators on the general issue of how Canada honours or does not honour its international commitments in the area of human rights and on what I often call Canada's difficult relationship with international law.
On this general issue, I have also produced quite a voluminous study commissioned by the Department of Foreign Affairs. At this point, I will refer to two key provisions of the Vienna Convention of the Law of Treaties to which Canada is a party, article 26, that treaties must be executed in good faith; and also article 27, which says clearly that a party to a treaty cannot invoke domestic law as a justification for non-compliance.
I have often said and written that human rights must show their effectiveness and strength particularly with regard to those who need them the most: Those who are weak, exposed and vulnerable, and children are among those.
We all know that the international community and also individual countries have made a great effort to protect and promote the rights of the child. Canada has undertaken important international commitments in that respect, not only under the Convention on the Rights of the Child, but also under a number of other international conventions, for example, the two covenants on civil and political rights and on economic, social and cultural rights.
The Convention on the Rights of the Child is the most widely ratified international human rights treaty. Only two countries of the world have not ratified it: Somalia and the United States of America.
The Convention on the Rights of the Child differs from other comparable human rights instruments. There is one big difference, I believe; namely, the fact that the convention as a whole, and article 42 in particular, recognizes that the development of popular awareness of the principles and provisions of the convention by adults and children alike is an essential means by which it can be promoted.
What is required is, on the one hand, to create the appropriate legal framework and, on the other hand, to inculcate the values enshrined in the convention into the consciousness of the people as well as the decision-making elites.
The convention is an important means of empowering children and those acting on their behalf. The consciousness of the people to which I referred should not be taken for granted. In 1999, on the occasion of the tenth anniversary of the Convention on the Rights of the Child, the International Bureau for Children's Rights and the faculty of law at McGill University, of which I was then the dean, organized an international conference at which Senator Pearson played a key role.
At the time, an important Canadian newspaper, the National Post, published a series of editorials, which I still remember, that were highly critical of the very concept of rights of the child. One of these editorials was entitled ``Infantile Leftism.'' I would not like to think that we are engaged here in an exercise of infantile leftism.
This shows that even in a liberal country like Canada there is still considerable ideological opposition and resistance against empowering children and against accepting that they are holders of fundamental rights and are entitled to exercise them.
Under article 2 of the Convention on the Rights of the Child, contracting states have undertaken a commitment to respect and ensure the rights set forth in the convention without discrimination of any kind.
The words ``respect'' and ``ensure'' are by no means repetitive of each other. The first has more passive and the latter more active connotations. The 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. This is particularly important when it comes to economic, social and cultural rights.
I am sure that honourable senators have looked carefully at the concluding observations made by the Committee on the Rights of the Child in 2003 in response to Canada's second periodic report. These remarks should be taken seriously. I will refrain from going into them in detail, but let me address three points.
First, I am particularly impressed by the remarks of the committee on the enjoyment of economic, social and cultural rights by children and on the increasing number of children living in poverty in this country. These remarks should be read together with similar observations made by the Committee on Economic, Social and Cultural Rights and the Human Rights Committee. What is at stake here is the general and painful issue of the implementation of economic, social and cultural rights in Canada.
Second, the Committee on the Rights of the Child reiterated its concern with respect to the reservations maintained by Canada to article 21 and to article 37(c) of the convention. The reservation to article 37(c) seems particularly embarrassing. Article 37(c) concerns the deprivation of liberty of children, to which I will return briefly in the second part of my presentation. The reservation says that 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.
In my capacity as special representative of the UN Secretary-General for Human Rights in Cambodia, I repeatedly criticized the fact that the important and widely accepted principle according to which detained children should be separate from detained adults is frequently disregarded in that country, one of the poorest countries in the world. However, it is difficult to understand how a prosperous liberal country like Canada cannot adhere to that principle without reservation.
Third, Canada has signed, but not yet ratified, the optional protocol to the Convention on the Rights of the Child, on the sale of children, child prostitution and child pornography. I hope that Canada will soon join the 87 countries that are already party to this protocol.
In Cambodia, I also see the terrible reality of human trafficking and child prostitution and the untold suffering they provoke. These phenomena must be fought vigorously by the international community, and Canada should fully join that effort.
[Translation]
In my second part, I would like to raise a specific and painful problem, the problem of children deprived of liberty. The data at my disposal mainly concern Quebec, where I live. I'm not talking about Quebec because the situation is worse there than in other provinces; on the contrary, it's probably better than elsewhere, but it nevertheless raises some serious questions.
I recently attended a showing of a documentary filmed in Quebec, entitled Jeunesse enfermée, which upset me deeply. A number of my colleagues were there, including two law professors, Lucie Lemonte and Julie Desrosiers, who have done a lot of work in the field, and two youths, former inmates, who fortunately seem to have made it through, but whose stories were overwhelming.
I would like to make four brief comments on this subject and to draw two modest conclusions. First, the percentage of children who have been deprived of liberty is much higher in Canada than in other democratic countries that respect human rights.
Second, the conditions in which young people are detained violates a series of fundamental rights recognized by provincial, federal and international jurisdictions. More particularly, segregation and removal measures are imposed in a highly debatable manner that can at least be characterized as inhuman and degrading treatment. Furthermore, force is frequently used by supervisors. In Quebec, the Commission des droits de la personne et des droits de la jeunesse has conducted numerous investigations whose findings are distressing.
Third, in certain rehabilitation centres, there is a mixed clientele of young offenders, young accuseds and youths in protection sentenced to closed custody. Although the Quebec Human Rights Commission has found that this mixed arrangement is illegal, it nevertheless continues.
Fourth, and this is a paradox, under the present legal system, the rights of young offenders seem to be more or less poorly protected than those of youths in protection.
My two brief conclusions on this subject are, first, that the rights guaranteed under legislation and the charters, as well as the Convention on the Rights of the Child impose a duty to favour alternatives to incarceration in the case of children and, second, that placement and detention conditions for children should be subject to radical review.
I conclude with one observation and two modest questions. First, I think the obvious observation is that much still remains to be done in order to achieve full application of the Convention on the Rights of the Child in Canada. My two questions are as follows: first, shouldn't we consider constitutional protection for children's rights in Canada, and, second, why not incorporate the Convention on the Rights of the Child in the domestic law of Canada and its provinces?
[English]
Ms. Suzanne Williams, Managing Director, International Institute for Child Rights and Development: Thank you for your kind invitation to appear here today.
I would like to echo Dr. Leuprecht's recognition of Senator Pearson, who sits on this committee. She has played a pivotal role in the child rights community in this country and internationally. We would be remiss if we did not make a point of acknowledging her.
I would like to tell you a bit about the International Institute for Child Rights and Development, better known as IICRD. We started this organization in the early 1990s to examine the potential of the UN Convention on the Rights of the Child to make a real difference in the lives of children. For the past ten years, we have been working both within Canada and internationally to look at practical applications of the convention that can make a real difference to all children.
Dr. Cook, our Executive Director, sends his regrets today. He is in Asia. The first part of his trip is dedicated to finding options for long-term rehabilitation for children and their families and communities who have been impacted by the tsunami. The second part of his trip is dedicated to research and evaluation of children who are impacted by migration and high rates of HIV/AIDS in Southeast Asia.
I spent the first part of today across the water in Gatineau at a one-day session on how children are engaged in municipal processes in this country. There were youth representatives from municipal councils there under the auspices of a project we are working on called Growing Up in Cities, which is focussed on the social inclusion of children. Children have a lot to offer, and I wish I could have brought a young person with me today to address the committee directly to give you a sense of what they are doing.
In terms of my remarks with respect to the mandate of the committee today, I would like to address you in two parts. The paper we have presented to you today is entitled ``Meeting Canada's Obligations under the UN Convention on the Rights of the Child: From Paper Concepts to Living Benefits for Children.'' This is our challenge.
As this committee is very well aware, the convention is now more than 15 years old. Canada ratified it in 1991. It is a legal document. It is international law, and there is real strength in that, but there are definite challenges as well. Canada has considered this convention in over 100 cases in this country. It is reflected in some domestic legislation, but not nearly enough.
The question is why we have these challenges. The answer may be very obvious to some of you, but from our perspective it stems from several things, the first of which is the fact that it is a legal text. The implication of that is that international law is not viewed as having a great deal of teeth. However, this approach misses the point in that international law can be used in a domestic court to interpret legislation where it is ambiguous, and there is a common law presumption that Canada will live up to its obligations in international law. It is also a minimum benchmark for the standards we set for ourselves within the Charter. International law is a bit of a challenge.
The second challenge is jurisdictional issues. Having gone through several hearings on the Divorce Act and on matrimonial issues involving Aboriginal people, I am sure this committee knows that this is a big challenge in Canada. While it 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. Another strength is that the provinces have ratified this convention.
Another challenge with respect to this legal text is that human rights are adversarial in nature. In Canada, when someone has a right, they also have a remedy, which usually means going to a court for redress. This approach tends to invoke a focus on infringements, commonly with the consequence that it appears to judge and, thereby, risk alienating families, communities and institutions that are responsible for the care and protection of children. We see this being played out in the Canadian public. Dr. Leuprecht referred to some of the National Post articles, and this lends itself to that debate or controversy.
There is evidence that indicates that a focus on violations can cause resistance and rigidity, and it may be less productive to focus on rights and remedies and more positive to focus on goals and incentives for children and Canadians at large.
As a legal text, this document is both normative and culturally blind. While there are strengths in law creating norms, the application of those laws can result in rigidity and it can be very challenging to have that rigid structure applied to the real lives of children. This document is also culturally blind, and we need to be sensitive to that in this country. Perhaps that also explains why the Aboriginal community has given a lukewarm reception to this document.
Those are some of the challenges of the fact that the convention is a text in and of itself. Another challenge with the implementation of this document is that it is unknown or misunderstood. The first reason for this is that there is limited public and political support, perhaps with present company excepted, to a certain degree, as I understand you do a great deal of work, and we are grateful for that. Nevertheless, there are real challenges. With regard to Canada's actions from the initial introduction of the convention, to the UN General Assembly Special Session for Children, to the recent National Plan of Action, we have not seen a well-resourced, comprehensive strategy to communicate to Canadians what this is about.
I know that from first-hand experience in work with people who are directly impacting children. We had a session last month with several professionals from the Child and Youth Officer for British Columbia, who work directly with children. Even they did not know fully what the convention is about and what it can mean for children. We have to do better.
With respect to a misunderstood context, there is a lack of monitoring and evaluation with respect to this convention, which is probably true for many human rights conventions. The links between government outputs and outcomes are not clear. We need to monitor and evaluate the situation to determine how well children are reached by policies and activities that supposedly implement their rights. At present, there is little national information about children and relevant government initiatives.
We suggest that effective evaluation and monitoring requires a continual comprehensive focus on the purpose of the rights concerned, that is, the well-being, full development and protection of children. In this area, the UN Committee on the Rights of the Child has said point blank that we need better disaggregated data. We echo those comments. Without that, we really do not know where the gaps lie with respect to children. Again, we do not know where the potential strengths lie across the jurisdictions in this country without that sort of data. No child rights initiative should be deemed a success until it is shown to have tangibly improved the lives of children.
Another challenge with respect to the convention in terms of an unknown or misunderstood text is the lack of coordination. At the national level, we certainly appreciate the efforts of many, including Senator Pearson, but in 2002 the UN Committee on the Rights of the Child stated that every state needs an independent human rights institution with responsibility for promoting and protecting children's rights.
At the global level, support is building for this approach. Arguably, Canada is 20 years behind. It was 20 years ago that the first national ombudsman was appointed in Norway, and Canada still does not have anyone at the national level. Given 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.
The other area for coordination is within government itself. To date, coordination of children's initiatives has been housed in Health Canada. This is somewhat problematic in that the coordinating mechanism is not given the priority it deserves and sends the message that matters of children are restricted to the health realm. This does not adequately speak to the broad range of federal matters that impact children's lives.
The final area of the challenges that I will address is looking at a text without a context. We have this convention that does not necessarily appreciate the context to which it applies, and there are several reasons for that. First, there is a lack of understanding the individual context of many children's lives. Understanding the context is critical.
What does the world look like through the eyes of a child? There is not a lot known about the lives of children, particularly within the family, where they operate the most. I will give you an example of this lack of understanding from the Growing Up in Cities project, which I mentioned earlier. This is a research project that looks at the social inclusion of children and develops tools by which children can communicate and have input into municipal processes. In an activity called the framing activity, children hold a picture frame up against areas that they see as child friendly within their communities and areas that they do not, and then they take photos. A group of children in Halifax held up the frame and said that the most child friendly place in their city was a cemetery, which was a bit shocking. They saw the cemetery as the friendliest place because there they could run freely, play and do what they wanted without being ``hassled'' by adults to move along.
Aside from revealing information that we would not otherwise have, the information from this exercise can be used by social planners to engage children and adults in the process of planning cities that are friendly to children as well as to adults. It respects their rights to say what they have to say.
In terms of a text without a context, I also suggest that there is a lack of social and cultural grounding of the convention. I mentioned earlier the lukewarm reception of the Aboriginal community for the convention. It really does require social and cultural grounding. The rights of children cannot be taken individually. They are woven together to create a tapestry of rights for each child. The rights of a child who lives on-reserve, a disabled child living in a city and a child in your neighbourhood differ, and we need to be aware of that in our application of the convention.
Not only is it not helpful, but sometimes it can result in more harm than good, if we are not careful in how we implement children's rights. As an example in the child protection context, we teach children that it is not good if adults touch your private body parts, but what do you say to a disabled child who relies on a caregiver for that? The message becomes confusing and can potentially result in harm to the child.
With respect to the lack of contextual understanding, we also point to the need to understand the social ecology of children's lives. The social ecology recognizes that there are systems within which children operate; it is not just the individual context. I have a diagram in the brief that demonstrates this. We place the child at the center of systems. Moving outward, the systems that can be of support to them are, first, family, then community, civil society, and then broader social values within the civil society. We frame all of that in the UN Convention on the Rights of the Child, recognizing the strengths that lie in that context. There is a real need for an overarching framework that recognizes that systems impact children.
Finally, there is limited programmatic impact of child participation. With the assistance of CIDA, we did some research with respect to child participation. While the words ``child participation'' do not appear in the convention, there are several articles that support it. Some of the benefits are more effective and sustainable decisions when you have the information that only children have and building stronger civil society and democratic institutions.
While Canada has had some success at one-time events including child participation, there is a need to look at the day-to-day life of children and engaging them in day-to-day processes and not just one-off events.
That is the bad news and the challenges we face, but there are many things that Canada can do to improve the situation for children's lives, and we call this moving from paper concepts to living benefits for children.
The Chairman: In order to leave some time for questions, please be succinct in your recommendations, and perhaps the committee can explore them.
Ms. Williams: I would be happy to, Madam Chair.
Our first recommendation is to require a rights-based approach in legislation, policy and practice. For example, if 100 children need to be immunized, the needs- or problem-based approach would say that after 70 children are immunized we have a great success rate of 70 per cent. The rights-based approach recognizes that there are still 30 children that need immunization. The rights-based approach reaches out to even the most marginalized children and makes a difference in all children's lives.
We need to ensure that interventions are consistent with a developmental rather than problem-based approach. A developmental approach recognizes that there are common antecedents to children's problems. It focuses on children's strengths and the strengths in their community.
The third recommendation is to support research, monitoring and evaluation grounded in the lives of children. We need to engage children in research and look at new research methods that engage children.
Fourth, we recommend that we need to partner with children more and support them as participants in and duty bearers of their rights.
Fifth, we need to create and strengthen a coordinating focal point within the federal government. This could take the form of an interdepartmental working group or a group chaired by a minister who is accountable to Parliament, and also an ombudsman for children.
Sixth, we need to support training, education and awareness-raising that creates an atmosphere that supports children in the broader community.
Seventh, we need more investment directed to operational practicalities rather than funding the higher-level bureaucratic arrangements.
Eighth, we need an independent, national children's rights institution. This is in keeping with the Paris Principles of 1993 for human rights. Those principles need to be supplemented by producing documentation and information that is child friendly, working directly with children where possible, having access to government systems and drawing on the expertise of young people and young people's organizations.
Finally, we encourage all Canadians to challenge ourselves to broaden the reach and impact of child rights and to look at creating a culture of children's rights. In order to do this, we need to look for the gaps, create partnerships, strengthen the systems, and engage children, their families and communities in supporting a culture that has the well- being of children at its heart.
The Chairman: Thank you, Ms. Williams.
Senator Oliver: Thank you both for your excellent presentations.
Ms. Williams, the biographical material we have on you says that you have done a lot of work in children's rights training and child participation in the law, and that your work includes examining meaningful child participation in family processes in British Columbia.
In your third and fourth recommendations you talk about supporting research that is grounded in the lives of children and partnering more with children.
Senator Pearson has told this committee that we, as a committee, have to find a way to get children more involved in this study. Given your expertise in this area, I would like to hear from you how we should go about doing that. Should we go out to the children or should we have them here in this formal setting? Should we see them one on one or as a group?
I would also like to have your views on what we in law used to call ``the age of intellection.'' When is a child too young to have meaningful input? Should we concern ourselves with the age of intellection? If so, what is the current thinking on that?
Ms. Williams: How to engage children is one of the biggest challenges. There have been recommendations written on this and I would be happy to provide you with that publication. As far as processes for this committee, you need to look at who your constituent is and where the child-led organizations are that support what you are doing here and are interested in it.
In our work, we find that it is very helpful, particularly in public processes, to work with organizations where a young person can come and represent the organization. You need to ensure that there is not just one child coming before you but several children. You need to create enabling spaces that are consistent with what children are about. Not many kids like to sit around a boardroom table like this. They want to be engaged, and this is where the tools on how to engage young people come into play.
Senator Oliver: What age are you referring to when you say ``young children?''
Ms. Williams: It depends on the capability of children. I wish that Dr. Cook were here because he is a child psychologist and knows that data much better than I. It also depends on what you are doing. We have heard the Children's Commissioner from New Zealand talk about people who represent children visiting the children when they are infants. There is a way that children participate as infants in our society, and we need to challenge ourselves.
You need to look at the context in which you are trying to have young children participate. You may want caregivers to be with you when you interact with them, but it is contextual. In this sort of setting, you would want adolescents, or even children as young as 12, depending on their capability to participate in the forum you are creating.
Senator Oliver: What about children aged eight, nine, 10 and 11?
Ms. Williams: I hate putting an age on things. We believe in the evolving capacity of children, which the convention recognizes. Some children who are very young have an amazing capacity to communicate. I would hate to say that anyone should be precluded from a process just because of their age.
In the project that you referenced in which I am involved looking at meaningful child participation in family court processes, we had a young girl speak to us who, from the age of three to the age of 12, was involved in a hotly contested divorce proceeding. She said that she wished for that entire time that she was 12 so that someone would listen to her. There are young children who really do want to be heard and we have to be sensitive in how we do that.
In a court setting, having an advocate or someone who takes the time to build a rapport with children is critical. It depends what you are trying to do. I would be happy to provide you with further information on that.
Senator Oliver: Could you comment on the age intellection? What is the current thinking on that now?
Ms. Williams: I would not feel comfortable giving you an age on intellection. I do not know enough about that realm to do that. I do know that there is concern about what children say at certain ages and how that is regarded. I can say that if you build a relationship with children, you get more meaningful input. If you can work with children in an atmosphere that works for them, then I would encourage you to challenge yourselves to look at how young the children are from whom you can get input.
One area in which Canada is far behind is school systems. In Canada, we do not do a very good job of asking kids what they think of their schools, whereas in Colombia they do. We think we are so far ahead in so many realms, but we are not. We should challenge ourselves to ask children about services we are providing to them. If we are off the mark and do not get the greatest data, at least we know.
Senator Oliver: As a Senate committee looking at something as technical as the Convention on the Rights of the Child, should we have the children here, perhaps to a smaller boardroom, or should we go out to them, and how many should be in a room?
Ms. Williams: In this setting I would recommend a combination. There are some young people who would be happy to present in this setting. Again, challenge yourselves to go out to settings where young people are comfortable, and have them talk to you about things. I would recommend that there be a process. It is not something that you can do on a one-time basis and expect to get meaningful input from children. However, there are child-led organizations that work with young people to prepare them, and they come with them so that they are not on their own.
This morning in Gatineau, five young people's organizations presented, and they did a great job of conveying their message. They were adolescents, and they would be more than capable of coming here to give you their views.
Senator Poy: Professor Leuprecht, in 2003, the Committee on the Rights of the Child recommended that Canada put a body in place in order to coordinate and implement the convention. In the brief that we received from your institute we see a recommendation for an independent national children's rights institution. How would this work within the federal-provincial framework and should such a body be able to receive individual complaints?
Ms. Williams: Actually, that was our recommendation, and I would hate to put that into the mouth of Dr. Leuprecht without his consent.
Are you asking about an independent national institution working within the federal structure?
Senator Poy: Yes.
Ms. Williams: I think it could work very effectively. There are plenty of areas within sole federal jurisdiction, for one thing. They include Aboriginal children, divorce, immigration, refugees and criminal justice. Those all fall squarely within federal jurisdiction, so there is a role there. There is also a role in overall coordination. Canada is the sole duty bearer in this country for the obligations in the convention and, as such, needs to take that on across the jurisdictions.
It is about setting up dialogue, which is a constant challenge in the federal system, but it is possible. The provinces have ratified and are prepared to meet the obligations, and they need someone to coordinate them.
Senator Poy: Will that body be the coordinator of policies?
Ms. Williams: There are two levels of coordination. One is external to government and one is internal to government. Within the government structure there needs to be coordination. Perhaps an ombudsman is a way also to aid in the internal coordination from the standpoint of how effective are government decisions, actions and activities with regard to affecting children, because children would come to the ombudsman with their concerns.
Senator Poy: Are you talking about at the federal level?
Ms. Williams: Yes.
Mr. Leuprecht: It would be worthwhile for Canada to look at other federal states to see how they solve these kinds of issues. I very much like what some of them are doing. For example, Bob Rae is actively involved in the Forum of Federations.
I often have difficulties understanding why things are so difficult here in Canada although there is, of course, the Quebec-federal issue. Switzerland is a highly federal state. Another more recent and interesting example of a federal state is South Africa, where they do find solutions.
What I find unacceptable, to be blunt, is that very often before the monitoring bodies of the UN the Canadian representatives say simply that they do not implement because Canada is a federal state. That is simply not good enough. I am sure you could find and build institutions, both at the federal and the provincial level, that would respond to the needs that exist in the area. I entirely share the views of my colleague here. If the will exists, solutions can be found.
On the individual petition I would say, possibly, yes. I did mention the Quebec Human Rights Commission that looks into complaints coming out of the places of detention of children. It is very interesting and quite terrible to read the cases. I read a number of them. The problem is that the decisions of the commission are not binding. The commission can only make recommendations, and that is not good enough. In Quebec, an unhealthy tension has built up between the commission, which obviously is sometimes critical, and the institutions in which young people are held.
[Translation]
Senator Pépin: You talked about children deprived of liberty. You say there is a higher percentage of these cases in Quebec than in the other provinces. You also said that detention conditions are unacceptable and should be completely reviewed.
Could you elaborate a little, first of all, on the length of sentences, on the places where these young people are detained and on the detention conditions? When they are released, whether completely or partially, where do they go? Who takes these young people in? In light of your comments, it appears that people who are responsible for them are not all that qualified. What should be changed and when should it be changed?
Mr. Leuprecht: First of all, I believe I should clarify one minor point. I did not say that the percentage of young people or children being detained as higher in Quebec than in the other provinces, but rather higher in Canada than in other democratic countries.
Furthermore, the situation in Quebec is probably not as bad as in the other provinces. However, even in Quebec, the situation is distressing.
Now let us talk about the length of detentions. Detention in itself is a deprivation of liberty. The length of detention varies. A number of children serve a number of consecutive terms. I do not have the time to go into the details. However, I will say that conditions are often very tough. This is in rehabilitation centres. Detention orders are issued under three acts: the Young Offenders Act, the Health and Social Services Act and the Youth Protection Act.
What is deplorable is the mix of inmates. Very often, young offenders who have been sentenced are held together with youths who need protection. I could cite you some terrible cases documented by the Quebec Human Rights Commission. Within this system, which in itself is tough, there are special penalties including segregation and withdrawal. These penalties are inhuman conditions to say the least. Some youths are sometimes placed in a closed space for as long as 72 hours. These are locked, empty, windowless rooms. Another documented fact is the use of force by employees.
Quebec at one time had a quite progressive system in this area. In recent years, however, that system has gone downhill to a certain degree. Bureaucratization of the system has been noted. Some have denounced a lack of humanity in the system.
You also asked where youths who leave these detention centres go. The situations vary greatly. Some go back to the street, while others go to foster homes or return to their families.
The situation is very complex. Lucie Lemonde and Julie Desrosiers have written at length on the subject. Moreover, if you wish, I can provide you with the references of the recent documentary film on this sad phenomenon.
Senator Pépin: I share your view in denouncing the harmful impact that being placed or segregated for a number of hours can have on a child. I am part of a group that is studying mental illnesses. Research has shown that a mentally disturbed child should never be isolated. On the contrary, they should be supported. I was not aware of the seriousness of the present situation.
Mrs. Williams, allow me to make the following comment. You say we do not seek our children's opinions enough on what they like about school. We heard a news item this morning according to which teachers are intending to use pressure to force students to listen more carefully to what they say. It would be interesting to see what children would have to say on the subject.
[English]
Senator Pearson: I am interested in the reservation Canada took on article 21. It is a complex reservation, and I have not been able to make up my mind about how we would push for removing it. For those who are not aware, the reservation is about adoption, but I do not know the exact language.
Do you have it, Professor Leuprecht?
Mr. Leuprecht: I do not have it with me. The problem is that of Aboriginal communities, and I think the solution can only be found by speaking to the Aboriginal communities. I believe that some of their hesitation is due to a misunderstanding of the very purpose of the convention, the feeling that something that is culturally different is being imposed upon them.
The Chairman: For the record, the reservation reads in part:
...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.
We have put a qualified reservation in as opposed to a full reservation.
Senator Pearson: It would be important for us to pursue this with some Aboriginal leadership, although we have already had very good representation from Cindy Blackstock from the First Nations Child and Family Caring Society of Canada.
[Translation]
Senator Ferretti Barth: I think there are too many organizations dealing with children's rights. A review of those organizations might be useful, because, despite the passage of time, we still find ourselves with problems, acts and regulations to enforce.
There should be cooperation, guidelines applicable to everyone. Currently, everyone is doing what they can, depending where they are. We also have to take into account the fact that the province has its own laws and cultural characteristics.
Second, I am interested by the ``Growing up in Cities'' project you referred to. Can you explain what you intend to do with this surprising project? Do you think older people could get into this process and play a role?
[English]
Ms. Williams: Our work is framed by the UN Convention on the Rights of the Child, so our focus is on engaging young people where they have traditionally been marginalized. We are the lead agency in the Growing Up in Cities project and we work with youth-led organizations on the ground in Vancouver, Gatineau and Halifax. Gatineau is a little bit exceptional, because we are partnering with the youth council in Gatineau. We work with a child community organization in Halifax. Therefore, we work in three cities in the how-to of engaging young people in civil processes.
A similar project could be done for older citizens, and perhaps this could be a model for that, but this is about how to reach out to young people specifically.
[Translation]
Senator Ferretti Barth: I deal with older people in Montreal. The problems we encounter among children sometimes arise among seniors, such as corporal punishment, violence and so on, since they are people who cannot defend themselves. I set up a intergenerational project in which seniors take care of homeless youths. It is working very well. It would be possible to do the same thing with children.
In addition, according to section 43 of the Criminal Code and the Supreme Court, corporal punishment is a crime. In provinces where you have a cultural mosaic, as is the case in Quebec, corporal punishment does occur. Society should be thoroughly educated. I was punished when I was little, and I did not die from it. So you have to understand what punishment means, what is meant by it and where the limits are.
Do you agree with section 43 of the Criminal Code? Because we should bring pressure to bear so that we can define what is meant by ``corporal punishment'' from start to finish.
[English]
Ms. Williams: With respect to whether I agreed with the Supreme Court's decision on section 43, I was disappointed, particularly when you consider that section 15 of our Charter is about human dignity. To me, the ability to hit children under the law does not comport with human dignity. For that reason, I do not agree with the decision.
I agree with you that we need more education. It is not about penalizing parents who are violating children's rights; it is about educating and supporting so that we are doing things in a better way that support children, their families and communities.
[Translation]
Senator Losier-Cool: A number of witnesses we have had in this committee told us that the Convention on the Rights of the Child was not well known to other countries or to Canadians. They identified certain systems, certain projects. Perhaps that has been done, but if it has not, would it be helpful to do so? We could look at cultural aspects such as theatre and song, and use those media to send our message. Does that exist?
Mrs. Williams: In Canada, yes. There are groups that use that method
[English]
However, it is not an overarching strategy; it is not widespread. It would be taken on an individual basis. It is an excellent way to communicate, particularly with children and child-friendly environments where children exist. It is an excellent avenue to convey a message. It is used very effectively internationally.
[Translation]
Senator Losier-Cool: That is a suggestion we could study. We could twin it with the cultural side. I am thinking of the internationally renowned singer, Yves Duteil, who promotes the Convention through his songs. We could do the same thing in Canada with singers, or musical groups or use the theatre. What counts is that the message is repeated.
[English]
The Chairman: Dr. Leuprecht, we have had a debate on whether we can further the interest and rights of children by an evolution in education or whether we would be best to recommend that, if the convention contemplates rights- based, we put the enabling legislation in place in Canada.
Can you comment on whether evolution or legal framework is the way to go?
Mr. Leuprecht: This is not an easy question. I do not want to be overly diplomatic, which is not my style.
I previously referred to the specificity of the Convention on the Rights of the Child. The convention says that you need both. I agree that you need legal measures. I suggested as a possible avenue the incorporation of the convention into the domestic law at the federal and provincial levels. That is one way, but that is not enough. You need to create consciousness. As my colleague said, you need to build a culture of respect for the rights of the child. Both are necessary.
On corporal punishment, you probably saw that the Committee on the Rights of the Child said that it recommends that the state party, that is, Canada, adopt legislation to remove the existing authorization of the use of reasonable force in disciplining children and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed.
Finally, on a previous question, in Europe there have been a number of very interesting experiences of municipal councils of children. I do not know whether you have seen them. They are very successful. The children say how they would like the municipality to be. What they have to say is great, and it is also good democratic education for them.
Something that exists in various parts of the world that I find fascinating is human rights cities or municipalities where they try to apply human rights, including the rights of the child, very concretely at the grassroots level.
The Chairman: I want to thank both of our presenters for your experience and your advice to the committee.
Our next witnesses are Mr. Jean-Francois Noël, Director General of the International Bureau for Children's Rights, and Ms. Judy Finlay, Chief Advocate and Manager of the Office of Child and Family Service Advocacy, Toronto, Ontario, representing the Canadian Council of Provincial Child and Youth Advocates. Accompanying Ms. Finlay is Ms. Deborah Parker-Loewen, President of the Council and Children's Advocate, Children's Advocate Office, Saskatoon, Saskatchewan, and Ms. Janet Mirwaldt, Children's Advocate from the Office of the Children's Advocate in Manitoba.
Mr. Noël, please proceed.
[Translation]
Mr. Jean-François Noël, Director General, International Bureau for Children's Rights: I am the Director General of the International Bureau for Children's Rights. I would like to thank you on behalf of the International Bureau for Children's Rights for this opportunity to appear before you today. I would like to hail you for the initiative of conducting this study on Canada's international obligations.
[English]
I have prepared a brief but, unfortunately, did not succeed in submitting it to you in time to have it translated.
The Chairman: That is not a problem. If you will submit it, we can have it translated and circulated.
[Translation]
Mr. Noël: A few words on the International Bureau for Children's Rights: it is an international organization that celebrated its tenth anniversary in 2004. We have consultative status with ECOSOC, and we also work closely with the Committee on the Rights of the Child in Geneva and with the UN Office on Drugs and Crime and the UN Commission on Crime Prevention and Criminal Justice in Vienna. We are also a member of ISPAC, the UN Crime Prevention and Criminal Justice Program, where we deal with children's issues.
With regard to the implementation of the Convention on the Rights of the Child and its status elsewhere in the world, there are indicators of promising good practices. We know that the Convention on the Rights of the Child is the major document on children's rights that was awaited for decades. It is a virtually universal reference and instrument since only two states have not ratified it.
However, it is actual effectiveness depends on it effectively being applied. And it can only be observed that this is the real challenge for the Convention on the Rights of the Child, including in Canada.
As Professor Leuprecht mentioned, under international public law, a treaty in effect is binding on the parties and must be executed in good faith. In this case, article 4 of the Convention on the Rights of the Child states:
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.
In ratifying the Convention, the States Parties have undertaken not only to comply with the provisions of the Convention on the Rights of the Child, but also to apply its clauses in their countries.
Like Professor Leuprecht, I will take you back to 1999, the year we celebrated the tenth anniversary of the Convention. At that time, Unicef had prepared a study on the status of the Convention in the legislation of the States Parties. Without going into the details — this can be found in the notes to my presentation — in nearly half of the States Parties, the Convention had resulted in legislative activities and, in certain cases, in the incorporation of the Convention on the Rights of the Child into the Constitution.
More recently, in November 2004, at a conference organized by the International Bureau for Children's Rights in Montreal to celebrate the fifteenth anniversary of the Convention, the rapporteur of the Committee on the Rights of the Child, the Honourable Ambassador Moushira Khattab, reminded us that, in ratifying the Convention on the Rights of the Child, the States undertook to guarantee compliance of their domestic law with the Convention. That is why the committee recommends that the States Parties incorporate the Convention on the Rights of the Child in their domestic law.
The President of the Association internationale des magistrats de la jeunesse et de la famille also emphasized that such incorporation and the recognition that international law takes precedence over national law are essential in leading countries to comply with international treaties.
Last, the Deputy Director of Unicef reminded us that, while political commitment had made it possible to put the legislative reform process in place, social change could only last where that commitment was backed by a full legislative review, effective enforcement of the law and where the necessary resources were provided so that those thought and reform processes penetrated society as a whole.
Apart from incorporation in domestic law, many countries have established institutions to monitor compliance with the Convention on the Rights of the Child and respect for children's rights. There are more than 60 independent institutions in at least 38 states around the world; some are federal states, like Canada. The fastest development of independent children's rights institutions has occurred in Europe, where there are now 27 such institutions.
The Committee on the Rights of the Child systematically emphasizes the importance of ombudsmen and other independent institutions with which children or any person acting on their behalf may file complaints.
What is the situation in Canada? As we know, the Convention on the Rights of the Child has been integrated in a limited way, first through the reservations expressed at the time of ratification. Second, the integration of the Convention is also subject to the constitutional and legal context, including the separation of powers, the supremacy of the Constitution and the division of powers, of course. And lastly, it is slowed by this absence of any permanent national mechanism to coordinate action.
We have therefore observed two things. First, we have observed that the Convention on the Rights of the Child has not been integrated into Canadian law in any way, either at the federal level or in the provinces. 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.
We observe that Canada currently has no central institution that can permanently oversee implementation of the Convention on the Rights of the Child and respect for the rights stated therein. The Committee on the Rights of the Child moreover deplores this situation. And yet a number of Canadian provinces have established similar institutions and, in 1991, joined forces in the form of the Canadian Council of Provincial Child and Youth Advocates.
With regard to recommendations, I have had the opportunity to examine some of the evidence heard before today, and I must say we have no trouble supporting the vast majority of the recommendations that have been made.
Out of a concern for brevity, I would like to emphasize two recommendations that follow directly from the findings that were made a few minutes ago. The first finding is that, in our view, the Convention on the Rights of the Child should be incorporated in Canadian law through legislation.
Having regard to the diversity of subjects addressed in the Convention and the particular nature of the division of powers between the federal government and the provinces, entrenchment of the Convention on the Rights of the Child in the Constitution, as has been done with the Canadian Charter, probably represents the ideal scenario.
It is interesting to note that the Quebec Commission des droits de la personne et des droits de la jeunesse is preparing a proposal to recommend that the Convention on the Rights of the Child be entrenched in Quebec's Charter of Human Rights and Freedoms.
Second, as a number of witnesses have emphasized before this committee, a central institution should be established in Canada to oversee application of the Convention on the Rights of the Child. The functions of that new institution, some of which could be assigned to one or more subsidiary bodies could be summarized as follows.
First of all, to oversee compliance with the rights of children and youths in areas of federal jurisdiction, which calls for a body independent of government and a body with genuine powers, the power to hear individual complaints, conduct systemic investigations, put matters before the courts where necessary and, submit independent reports to the Committee on the Rights of the Child in Geneva.
That organization could guide federal government actions with regard to children by acting as an interdepartmental contact point. It could also coordinate action by the federal government, the provinces and the territories on issues of joint jurisdiction. It could establish a monitoring system in cooperation with the institutions that oversee compliance with children's rights in the provinces and territories, but also with the NGOs and with civil society, which are often closest to the actual situation and able to assess real needs.
Again in cooperation with the NGOs and civil society, this organization could put its knowledge and networks to use on awareness, training and sharing good practices. I would add that establishment of this central authority should accompany, not replace the integration of the Convention on the Rights of the Child into domestic law.
Internationally, we currently have a restrictive treaty which of course has legal value, but whose monitoring mechanism is devoid of any real power. I believe authorities could consider the impact that an organization with real power would have in Canada if the Convention does not create rights and obligations in the country.
In conclusion, Canada has built up an enviable international reputation over the years for protecting human rights, more particularly those of vulnerable persons, including children. You will remember the prominent role that Canada played in organizing the World Summit on Children in New York in 1990. Fifteen years later, at a time when a number of countries have incorporated the Convention in their domestic law, indeed even in their Constitutions, and have established international institutions to oversee compliance with those rights, the same unfortunately cannot be said about Canada.
It is high time Canada took concrete measures in this direction. Canada's compliance with its commitments toward Canadian children and its credibility in the international community are at stake.
[English]
Ms. Judy Finlay, Chief Advocate and Manager, Office of Child and Family Service Advocacy, Toronto, Ontario, Canadian Council of Provincial Child and Youth Advocates: Thank you for the opportunity to speak to you today. The topic of children's rights is at the core of the work that we do provincially. In the words of my colleague, we come to you today with some urgency but with some hope as well.
I am the Child Advocate for the Province of Ontario, and I am also the President of the Canadian Council of Provincial Child and Youth Advocates. We come together as a loose-knit coalition of provincially-appointed child advocates. Deborah Parker-Loewen is the Children's Advocate for the Province of Saskatchewan and Janet Mirwaldt is the Children's Advocate for the Province of Manitoba.
There are presently eight provinces with appointed child advocates: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland and Nova Scotia. New Brunswick is now in the process of creating legislation. In three provinces, the child advocate reports to the legislature directly, those being Saskatchewan, Manitoba and Newfoundland. In Ontario, about a year and a half ago, I felt there was some interference with my role as the Child Advocate and I asked for a third-party independent review of the authority of my office and reporting relationships. That review was completed and the government has recommended that Ontario's Child Advocate report independently and be an officer of the legislature. That is now before cabinet.
Quebec falls under the Human Rights Commission. Nova Scotia falls under the ombudsman. Alberta and B.C., and presently Ontario, report directly to ministers.
All child advocates uphold ideals proclaimed in the United Nations Convention on the Rights of the Child, and we see our role as fourfold. First, we ensure that rights for children are respected in our individual provinces and that rights are evident in provincial legislation, policy and practice. Second, we see ourselves as ensuring that the voice of youth is heard and that they participate in decisions that affect them. Third, we resolve disputes directly when young people call us, or we investigate when there have been breaches in practice or in terms of rights violations, particularly in relation to kids who are in the care of the state in institutions or group care. Finally, we make recommendations to our governments about issues concerning children.
The core population with which provincial child advocates work is children in the care of the state, that is, children of whom the state is in fact the parent. These are children who are no longer able to live in their own family's care, usually for reasons of protection. There are 100,000 children in child welfare care across Canada, so Canada is the parent to 100,000 children.
In addition to this, the state has responsibility for children in the youth justice system, children in care for children's mental health issues, children who are medically complex, street children who live in shelters, separated children coming into Canada, residential schools, et cetera. All of these children are eligible to speak to an advocate. The state has a special responsibility to protect these children in their care and to provide care not only equal to but better than family care, because of their particular vulnerabilities. This requires a rights-based approach, as you have heard earlier today, which uses a social inclusion model. On the whole, society has been absolutely indifferent to these young people and we, as child advocates, are very discouraged by this.
Our first priority is voice and participation. Generally speaking, to ensure citizenship in society as outlined in the UN Convention, which elevates children as citizens, we need the fulfilment of voice and participation rights. Participation is an empty process if safeguards are not in place to offer authority to that voice. Social inclusion of children requires an ideological shift to view children as competent, productive and equal stakeholders. We, as a society, have to believe that children offer a unique but equally valuable social perspective to any adult debate.
As an aside, I met with a group of young people here in Ottawa on Saturday that were either in the care of the state or from the care of the state. I spoke to them openly about what citizenship meant to them. These children said, ``We are not citizens of Canada. We are citizens of care.'' They said that their voice and participation in society was seen as solely through the care system. They felt marginalized; they could not relate to the broader society; they felt excluded.
Our second priority is the issue of children and violence. Violence among and toward youth has become an increasing concern in Canada. Youth describe the trajectory of violence in their lives from family to system. They witness or experience violence at home and replicate it in schools, group care, their communities or on the streets.
The UN Secretary-General is conducting an international study on children and violence. This highlights the interface between children's rights and violence. We need to engage youth in this conversation nationally to inform the study from a Canadian perspective.
Our third priority is Aboriginal children. These children are one of the most vulnerable groups of children in Canada. We all know the tragic statistics, and I refer to them in our paper. It bears repeating here that 46 per cent of children in the care of Canada are Aboriginal. Aboriginal children are incarcerated at a rate eight times higher than non-Aboriginal children. These young people cross from the child welfare system directly into the youth justice system. There is an active indifference to this situation and these children. If the conditions facing our Aboriginal children in northern regions was witnessed in the South — for example, if these conditions of deprivation were experienced in Toronto, Montreal, St. John's, Victoria or Edmonton — it would not be tolerated, and we would be closer to a meaningful resolution for these children today.
In terms of strategies, there is investment in the spirit, the principles and the text of the convention, and that is already evidenced in Canada. For example, the fact that we are here today having this dialogue is important to acknowledge. We need to extend this conversation to all communities. There are conversations now in communities and in civil society about children's rights, youth engagement and citizenship. This is a new development and is worthy of comment. As I have said, eight provinces have child advocates with requisite provincial legislation. Ontario had the first child advocate in 1977 and all of the other advocates have come on board over the last decade.
Authority for child welfare and child protection for Aboriginal children has now been divested to First Nations communities, consistent with the convention, and the principles in the Youth Criminal Justice Act is directly linked to the convention.
I would like to highlight the progress to date since 1991, because we need to applaud this progress and celebrate it. It gives cause for hope.
However, there is no monitoring or oversight mechanism to ensure the implementation of the World Fit for Children, the National Plan of Action, or the Convention on the Rights of the Child, all of which are tied to children's rights. In the first instance, we need a national body and a children's commissioner with legislative authority and a reporting relationship to Parliament. The role of a children's commissioner would be to monitor and ensure that Canada acts responsibly with regard to its commitment to the convention.
Second, 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. We encourage a two-pronged approach: a body to operationalize the principles and text of the convention and an independent body to monitor and report publicly about that implementation.
I invite each of you to visit our offices across the country to learn about advocacy at the front line. I would also welcome the opportunity to facilitate for you an occasion to speak to children and youth directly.
The Chairman: Ms. Finlay, I was in the family court system for more than 20 years. The statistics you cite on Aboriginal children is shocking. In a discussion we had previously, we found that the reservation had the sensitivity to the Aboriginal community that we did not want to intrude on their adoption practices. Yet, here we are intruding on the children. Do you have any advice on how we could embrace the convention in such a way that Aboriginal children get the benefit?
Ms. Finlay: I will defer to my colleague Ms. Mirwaldt.
Ms. Janet Mirwaldt, Children's Advocate, Office of the Children's Advocate, Manitoba: We should work with Aboriginal communities directly. I am a practitioner first and foremost. There is generally not an awareness of the UN convention among children beyond the groups that you mentioned. The solution lies in reaching out to the Aboriginal community and working together inside that community to find solutions of key importance. The most important thing is to ensure that people are aware that there is a convention, because I believe that the totality of children are not aware of the convention and their rights under it.
Senator Pearson: Thank you all for being here and for your presentations.
Mr. Noël, in talking about the body, Ms. Finlay and the others made the point that there are two functions. One is coordination within government and the other is the function of reporting to Parliament or to the legislature.
I could ask Ms. Finlay and the others if this is producing a conflict in their work.
Do you, Mr. Noël, think we should have two mechanisms, one of which would be a mechanism that places a unit within a ministry with cross-coordination, as the Swedes have? They have a strategy with the specific mandate to implement the convention. However, theirs is not the mandate of the ombudsman or whatever.
What is your thought about two mechanisms rather than one?
Mr. Noël: There is no mechanism now, so we are trying to tackle everything at the same time. It may create difficulties, but I do not think they are insurmountable. I think we can achieve them.
First, interdepartmental coordination at the federal government level is surely needed. From my own experience in working with different departments on different issues, you often get the sense that no one knows what the others are doing, including with regard to the Convention on the Rights of the Child. There is a need for that among CIDA, the Department of Justice, DFAIT and the others.
With regard to monitoring the implementation of the Convention on the Rights of the Child, we obviously need an independent mechanism. I do not know whether both can coexist under one umbrella, but both are very much needed.
You need coordination within government. You need to talk to the provincial ombudsman and to provincial institutions so that there is coordination, but on the issue of monitoring and hearing from the kids, it has to be an independent mechanism.
Again, as Professor Leuprecht said, you need to look at what others are doing, and he gave the example of Sweden. This is called best practices. We do it on day-to-day things. When we did our work on child victims and witnesses of crime and developed international guidelines that are now being studied at the UN, we started by identifying best practices. That allows us to see what fits and what does not fit. A number of countries have systems similar to Canada's and they have had a number of years of experience. Looking at them would be a start.
Ms. Deborah Parker-Loewen, President of the Council and Children's Advocate, Children's Advocate Office, Saskatoon, Saskatchewan, Canadian Council of Provincial Child and Youth Advocates: In Saskatchewan, I am an officer of the Legislative Assembly, along with the ombudsman, the provincial auditor, et cetera. My role is very clearly to review concerns related to the rights of children, particularly those who are receiving some kind of service from the provincial government.
There are also, within the Province of Saskatchewan, the Saskatchewan Action Plan for Children Committee and the Saskatchewan Council on Children. These usually include various community or non-government organizations, but they are primarily coordinated through government. My responsibility as an independent officer is to also review the systemic issues that come out of the coordinating groups and bodies. The functions of an independent monitoring office, such as we have in Saskatchewan, Manitoba and other provinces, is to monitor what is going on internal to government as well.
The two pieces need to coexist. I recognize that that is a resource challenge, but there are already within government a number of places where that kind of organizing body could probably happen. The challenge is to find a way to have an independent function, a truly outside-of-government observer/monitor/spokesperson who can animate children's voices in a passionate and clear way who is not responsible to any particular minister of government.
I have been Children's Advocate in Saskatchewan for ten years, so I know it is possible. It takes a legislative framework in order to have the independent body established so that it is not subject to the whim of the government of the day. In my view, and I think in that of our council, it needs to be a legislative framework with strong enough legislation to allow the head of that body to have the courage to speak about the issues impacting our children.
Senator Andreychuk, while 46 per cent of children in care in Canada are Aboriginal, in Saskatchewan the number is as high as 85 per cent. Aboriginal children are vastly overrepresented in vulnerable systems, and we cannot continue to remain indifferent about this.
Senator Carstairs: Ms. Finlay said that if this problem existed in Toronto or Montreal, it would be solved. It exists to an even greater degree in Saskatchewan and Manitoba, and it has not been solved. One gets the feeling that we do not much like children and we particularly do not much like Aboriginal children.
What are we going to do about this? How are we to resolve the fact that not only do these children not feel they are Canadian citizens but that, in reality, they are not Canadian citizens?
Ms. Mirwaldt: In Manitoba, the child welfare system is undergoing tremendous change. The right to control and provide child and family services, or protection services as we call them, has been returned to the First Nations and Metis communities, which is a fundamental step. Coupled with that is the need to support these organizations as they do this work. That has been lacking historically within protection services.
Also, we cannot end this at one service sector. We have to recognize that these children cross service sectors. We need to look at other service sectors and see how we can correct the historic wrong by working with Aboriginal and Metis communities and supporting their good work in that area.
Senator Carstairs: You talked about the fact that we have moved in that direction, and I think it is a positive move, but you and I both know full well that the resources are the big issue in this. Are you still experiencing the same kind of jurisdictional problems that we have been experiencing in other areas with respect to Aboriginal peoples with the province saying it is not their responsibility and the federal government saying it is?
Ms. Mirwaldt: Yes. The federal government will still be responsible for funding those services on-reserve, and in Manitoba off-reserve services will be divested back. Ms. Parker-Loewen can speak to the experience in Saskatchewan, but in Manitoba there are jurisdictional issues between those services and funding. Our hope is that there will eventually be an equal playing field for a child on-reserve and a child off-reserve in terms of accessibility of services and quality of services.
Ms. Parker-Loewen: As an example, my office conducted an investigation of a young child who was severely assaulted wherein we found that the on-reserve/off-reserve services and communications were inadequate, which resulted in appropriate information not going forward. There a numbers of recommendations coming from the UN committee related to this issue. As a nation we need to take seriously the recommendations from the UN committee with regard to how we implement the UNCRC in Canada. These are not just lip service recommendations that go into a stack someplace. We need to live and breathe them and turn them into real experiences. In our work as children's advocates, we can see every day how the UNCRC is not being respected for the children we serve.
First Nations child welfare authorities, with the federal government, have produced a very important report, the national joint policy review, and have made a number of recommendations that would be helpful in changing the situation for Aboriginal children who are involved in the child welfare system. That report was tabled in 2000, and we have seen very little action on it, as I am sure you have heard from other witnesses already.
This is an example of where children's rights are not being respected, despite good advice from a collective process that included Aboriginal people and government representatives. It has basically been put on a shelf.
Senator Poy: Ms. Finlay, in your presentation you mentioned that young people call you. What are the ages of these young people, and how do they know who to call?
Ms. Finlay: Children 18 and under can call our office, and we get children as young as seven calling us. Sometimes it is not the child calling directly. Often they have what we would call a natural advocate attached to them, so the advocate may make the call on their behalf, especially if the child is under the age of seven or eight. We visit the child regardless of the age and represent the child after having talked to and visited with him or her. The greatest majority of calls we receive is from children over the age of 10 who can articulate and who feel empowered enough to call a 1-800 line.
Senator Poy: Are they taught about your office in school, or how do they find this information?
Ms. Finlay: By law in Ontario, children have to be told about the Child Advocate when they enter a home that is not their own family home, be it a foster home or group care. They are told at point of admission and again at the 30-day point in their plan of care. Kids who are in the care of the state are fully knowledgeable of the Child Advocate and have the right to call us.
There has to be a poster in all residential care facilities, and we are now putting posters in school. We have young people talking to kids in schools about their rights under the Right Way Project. That is kids teaching kids about their rights.
Our mandate is more directed to kids in the care of the state as opposed to the general population of kids, unless they are seeking or receiving services from the government.
Senator Poy: Therefore, children who are beaten by their parents do not tend to call you?
Ms. Finlay: That would be a child welfare or child protection issue, and the police or the child welfare authorities would become involved. However, when children are involved with child welfare and they do not feel that they are being protected or getting the services they require, they would know to call us.
[Translation]
Senator Pépin: We are often told that young criminals or offenders include a number of people who are mentally disturbed. I was wondering whether you had any statistics on that. People place great emphasis on prevention, saying that we should be able to detect mentally disturbed children very young, but, when we study young criminals, we realize there are large numbers of them.
That is why I wanted to know whether all of you here had any statistics or whether you are aware of this problem.
[English]
Ms. Finlay: That is a very good question. In Ontario, we know for a fact that 66 per cent of the young people in the youth justice system have at least one diagnosable psychiatric disorder. Usually they have one diagnosable disorder plus a second diagnosis of conduct disorder. These are what we call cross-over kids, kids that cross the system. A large majority of the kids in the youth justice system come from the child welfare system or the children's mental health system. They come from those service sectors where they did not receive the kind or quality of care, service or treatment that they required and, by default, ended up in the youth justice system. We know full well that the majority of kids in the youth justice system have mental health disorders or issues.
We know that 80 per cent of the kids in the youth justice system come from homes where they have witnessed or experienced family violence. We know as well that 75 per cent of the kids in the youth justice system have learning disabilities.
[Translation]
Mr. Noël: I will speak from my own experience, having worked in youth centres for a number of years. I would link your question to what I was referring to this afternoon regarding mixed populations in youth centres, in other words youths who are in contact with young offenders or criminals when they are in those centres for their own protection. In some situations, that's utterly unacceptable. In others, I would say it is difficult to avoid to the extent that these children can't change overnight; they are the same youths with the same needs, the same deficiencies. For one reason or another, behavioural disorders will be identified as offences. It is not that easy to separate the two.
Furthermore, it is true that there are a lot of youths with mental disorders in youth centres — not just young offenders, but also youths who are there for protection. This is a resource problem. I do not know the situation in other provinces, but I know that child psychiatry services are very difficult to obtain. Some institutions are very selective about the children they will take in, for a lot of reasons.
As a result, in the case of children who have been taken out of their family environment — when you think that a seven-year-old child is taken out of his family environment because the parents cannot take care of him and are completely overwhelmed — you often see a mental disorder dynamic. If it is not treated, authorities merely offer a replacement environment with a framework, often a more rigid framework, or at least a more constant one, which enables the child to feel safe. But when he returns to his family environment, it will start all over again.
I have no statistics to give you on these services, unfortunately, but I can tell you that it's a very important aspect for which there are unfortunately no resources.
Senator Losier-Cool: Very briefly, before asking my question, I would like to comment on Senator Carstairs' remarks, as well as your answers. I think that, in our perhaps North American mentality, we have not really accepted, or we at least have trouble accepting, the principle of equality, because this involves the principle of equality. In other words, is a Métis child who goes to school in northern Manitoba equal to a Canadian girl who is at a private school in Toronto? That was simply my comment.
Now I would like to go back to your brief, in which you refer to a federal national commissioner. If your committee agreed to or recommended, in its report, putting this commissioner system in place, considering the current federal- provincial friction over health and early childhood, would you have any suggestions for resolving that friction, or will this commissioner resolve everything
[English]
Ms. Finlay: Perhaps the friction is okay in the sense that we need to have a passionate, elevated dialogue. There are various points of view, jurisdictions and questions. A 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.
Senator Losier-Cool: Yes, you will have the passion, but some levels of government, be they federal or provincial, will not take the same position in terms of what is happening on health or education. Do you see a way to eliminate those frictions?
Ms. Finlay: 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.
Senator Losier-Cool: Madam Chair, if we were to make a recommendation for such an advocate, we would have to deal with those preoccupations.
The Chairman: That has been raised several times.
[Translation]
Mr. Noël: Quite humbly, I would encourage your committee to move forward with the recommendations you consider appropriate, having regard to the context, to everything that has been said and that will be said in the meetings, even though some recommendations may be accompanied by friction or hesitation in their implementation. You should have the courage to recommend what must be done, even if certain recommendations may take a few years to be implemented. Times are changing, but you must not be afraid to move forward.
Once again, I would like to cite the example of incorporating the Convention in the Constitution. We know how complicated it is to make constitutional amendments. However, if it is never proposed, on the ground that we are aware how difficult it is, this objective will never be achieved.
[English]
The Chairman: I thank all the presenters this evening. You have given the committee the challenge of answering the questions and attacking the statistics that you have put on the table.
The committee continued in camera.