Proceedings of the Standing Senate Committee on
Human Rights
Issue 19 - Evidence - June 16, 2005 - Morning meeting
HALIFAX, Thursday, June 16, 2005
The Standing Senate Committee on Human Rights met this day at 9:05 a.m. to examine and report upon Canada's international obligations in regards to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.
[English]
The Chairman: Welcome to the Senate Standing Committee on Human Rights. We are here to examine and report on Canada's international obligations concerning the rights and freedoms of children, and in particular, the Convention on the Rights of the Child.
We have before us from the Office of the Ombudsman Christine Brennan, Supervisor of Youth and Senior Services, and Sonya Ferrara, Ombudsman Representative.
Ms. Christine Brennan, Supervisor of Youth and Senior Services, Office of the Ombudsman of Nova Scotia: Madam Chair, on behalf of our office, I extend our gratitude for the opportunity to present to the committee and send regrets from the ombudsman, Mr. Dwight Bishop, who was unable to attend this morning due to a previous commitment.
Mr. Bishop recognizes the importance of child and youth rights and the Standing Senate Committee on Human Rights' dedication to such issues and felt confident that my colleague, Ms. Sonya Ferrara, and myself, would accurately represent the Nova Scotia Office of the Ombudsman.
I would also like to note that we have some support staff members with us: Elaine Venturini, Charlie Gouthro and Kay Rogers-Lidstone.
Our mission is to advance administrative fairness, good governance and natural justice in the delivery of municipal and provincial public services by addressing the concerns of all citizens including youth in care and custody of the government. To do so, the office must be accessible and continue building and maintaining confidence and trust. Ombudsman representatives manage an independent, impartial and confidential complaint resolution mechanism for the provincial and municipal government entities within Nova Scotia with a focus on children and youth.
The youth services section established a proactive outreach process to children and youth in care and custody of the government within all youth correctional facilities. We established this section in response to allegations of institutional abuse at provincial facilities since approximately the mid 1990s. Effective the summer of 2005, we will be in all licensed residential child-caring facilities or group homes. Since December 2003, we have had a proactive outreach process within the province's only secure care facility.
Our primary focus is to provide an independent complaints resolution mechanism to all children and youth in care and custody of the government as well as those youth and families accessing youth-serving systems in the province. We strive to ensure that the administration of youth legislation within this province is fair.
We track complaints received by our youth services section based on the principles enshrined in the UN Convention on the Rights of the Child and I feel confident in saying our office has been instrumental in effecting systemic changes.
Our secondary focus is to provide education on youth rights and responsibilities. It is my understanding there has been some discussion with respect to establishing an independent human rights commission for children and youth, a recommendation our office supports. An independent federal body would provide a national focus for enhanced intra and inter-governmental discussion on children and youth rights. An organization such as this could serve to enforce national standards addressing the care and culture of institutions and increase awareness of the UN Convention on the Rights of the Child.
Currently, there is no legal obligation on provincial government to apply and uphold the UN Convention on the Rights of the Child. This lack of an enforcement mechanism weakens the integrity of systems providing services to the children of Nova Scotia. Establishing a centralized liaison to coordinate and facilitate such discussion would be appropriate; one-stop shopping, if you will.
The form of such a body, as well as the responses rendered, would need further research. The Canadian Council of Provincial Child and Youth Advocates, of which the ombudsman's office is a member, has recommended the establishment of a national body which would be responsible to promote and protect the rights of Canadian children. We suggest an independent office reporting to Parliament with the legislative authority to monitor and evaluate the impact of the national plan of action for Canada's children with blended ombudsman and advocacy roles and duties. Such a proposal has the potential to be a useful mechanism to allow discussion on federal-provincial matters particularly relating to the crossover on social programs such as child poverty.
As I mentioned earlier, we created the framework for our youth services section based on specific reference to the UN Convention on the Rights of the Child. We have advanced children's rights in the areas of prevention, identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment. Pursuant to article 19, subsection 2, however, we still have our work cut out for us.
We have experienced success through our initiatives aimed at the education of citizens and government officials and a reintroduction to commit and provide mentoring on youth issues and rights through the establishment of a proactive, independent accountability mechanism. We suggest a better entrenchment of the convention within all youth-serving systems across the country and in particular, within our own province.
We support Canada's National Plan of Action, "A Canada Fit for Children,'' and we support increased awareness, education and buy-in from all levels of government, to support, promote and infuse the principles enshrined within the convention. We encourage the committee to further explore and pursue ways to achieve this goal.
My last issue relates to present-day human rights concerns facing our children and youth. This office has identified a number of issues as emerging areas of concern for youth in Nova Scotia. We are concerned with the gap in child protection services for 16 to 17 year-olds; mental health services; sexual abuse and exploitation; internet and child pornography; homelessness and poverty; addiction; HIV/AIDS; gang-related activity and bullying.
The Chairman: That is the sum total of the report. We have the extended version.
Ms. Brennan: Yes, you do.
Senator Oliver: Thank you for your presentation. We have heard from a number of people in a number of jurisdictions on what to do about Canada's unique federal system. The federal government wants to ratify the United Nations Convention on the Rights of the Child; however, civil and property rights are provincial, not federal matters, and this leaves a gap between what the federal government can say and do. Nova Scotia's Education Act and other acts are provincial and not federal.
Your proposal is that we have a new creation, a new human rights commission of sorts. We already have a federal Human Rights Commission and we have a Nova Scotia Human Rights Commission and I am starting to think that we are getting a bit of duplication. Is it necessary to create yet another new organization?
Ms. Brennan: I have given that some thought. In discussions with the Canadian Council of Provincial Child and Youth Advocates, as well as in our office and with the province, it appears to be the only alternative. Such a framework would be able to enable the provinces to apply human rights as they relate to children. We have human rights for adults but children have lagged behind those rights and enforcements. We need a person who would really draw the focus to children and youth. We have relied heavily on Senator Pearson to do that, and in all fairness, she has other responsibilities.
Senator Oliver: She is our traveling human rights commissioner around the world.
Ms. Brennan: I am not sure what your thoughts are, but I believe it would be great to have somebody specifically dedicated to children and youth rights to pick up where Senator Pearson leaves off. I believe there will be a void upon her retirement.
I think we need a national commissioner, not necessarily an advocate, but an ombudsman with blended advocacy duties. I can appreciate your concern for duplication but a central focus would ensure consistency throughout the provinces. That would be a great start.
Senator Oliver: In this and many other instances, we need to find a standard form of provincial legislation because the federal government does not have the constitutional mandate to legislate in that field.
One suggestion is that maybe we should look at standard enabling legislation enforceable in every one of the provinces and territory. Has your organization given that any thought?
Ms. Brennan: To Nova Scotia's credit, and our office, we have been on the leading edge across the country because we base our youth services database on the principles in the UN Convention on the Rights of the Child. When a complaint comes to us, we cross-refer it to the convention, which brings Canada up to par with the UN report card. Unfortunately, some of the other provinces are not so forward thinking. We work closely with the University College of Cape Breton and their Children's Rights Centre. We have implemented convention rights in education in our core curriculum within the Department of Education.
It is indeed unfortunate that children in other provinces do not benefit from the rights and standards set out in Nova Scotia. Canada is in need of a consistent standard for children's rights.
Senator Oliver: I agree.
Ms. Brennan: It all comes down to the basic human rights value. Nova Scotia really is onboard with that and I think if any enabling legislation comes into place, we will be more than willing and able and ready to take that on. It is difficult to have buy-in from higher levels of government if it does not have any teeth.
I think it is important that the committee encourage the federal government to enact enabling legislation within the provinces so that there are repercussions, for not adhering to A Canada Fit for Children, and get us an "A'' on that report card on the international standards.
Senator Oliver: Currently, there are no legal obligations on provincial governments to apply and uphold the United Nations Convention on the Rights of the Child. You hit it right on the nose.
Ms. Brennan: 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.
Senator Oliver: You are right that Nova Scotia is a leader in a number of things in this country.
The Chairman: That is not a biased statement at all; it is a fact. Could I just follow up?
Senator Oliver: Senator Mercer agrees with me, which is unusual.
The Chairman: I think what you are doing is commendable; that you are tracking the convention and you are working with it.
Do you see it as a responsibility of your office but not quite the same approach throughout government systems?
Ms. Brennan: It is one of the primary responsibilities of our office. When you read any communication materials in the youth and senior services section of our office, it is throughout all of our material. We bring copies of the guide wherever we present.
Unfortunately, the convention is not a primary focus of the provincial government. That is why we are trying to bring it to them. We have presented to police departments, agencies, and even the RCMP. We bring it to youth to make them aware of their rights. We are trying to infuse that within government and we are doing a good job but we need leverage to achieve our goal.
The Chairman: At the federal level, we often hear from various parts of the governments saying that the convention is important and that they attempt to adhere to it. They see its worth, et cetera. However, when it comes to legal action, the Department of Justice says the convention is not binding. It may be persuasive; it may be morally important to look at it but they do not believe that it is binding upon them. They use the fact that it is not binding as a defence not to follow through on the convention.
Ms. Brennan: You have hit the nail bang-on. When it comes down to crunch time, I think that because it is not official legislation it becomes an excuse not to adhere to the principles.
I applaud the Department of Justice for youth correctional services and the Department of Community Services for their secure care and residential childcare facilities. These departments are coming on board and educating their front- line staff and management staff about the importance of the convention.
This committee puts focus on the issue but the legislation lacks the teeth to make many changes. At the end of the day, it is just a feel good promotional tool.
Senator Pearson: I am pleased to see you here and there are a number of things that I think that you are doing that are great models for us to follow.
I am impressed that you follow up on complaints using the convention. This method is also a very good way to educate people as well. Once a person understands that something comes under the Convention on the Rights of the Child, they are unlikely to forget it.
Witnesses from most provinces have pointed out the issue of the age gap. In the Atlantic provinces they wonder about the obligation to youth between 16 and 17 years of age.
Please tell us about this problem as it relates to Nova Scotia.
Ms. Sonya Ferrara, Ombudsman Representative of Youth and Senior Services, Office of the Ombudsman of Nova Scotia: Our province does not provide protective services to youth over the age of 16 years, yet some youth at that age need protective services. These youth have a hard time because they are unable to receive welfare services before the age of 19 when they are considered adults.
We do get quite a few calls from youth that are in between those ages. We take these youth on an individual basis and assist them in securing whatever services are available to them. We meet with community services and the social worker on their behalf. In many cases, there are some provisions for services for youth between 16 years and 18 years, but they have to meet certain requirements in order to receive this assistance. One of the requirements is to live in a supervised living environment.
It is difficult for youth to find a supervised living environment with an adult to take responsibility for them, when they are having trouble at home. They have to be involved in either a work placement program or school, which is great. If a youth is homeless, it is difficult to meet that requirement. In Nova Scotia, we only have one youth emergency shelter for youth over the age of 16 and that is the Phoenix House emergency shelter. Often there is a high waiting list. It is a 20-bed facility and other than that, there are not any protective services in place for youth over the age of 16.
If a youth is suffering from abuse at home, they have to see the police to start an investigation. They would lay a charge but Community Services Children's Aid does not really have the legislative authority to provide services for that youth.
Senator Pearson: I think it is an issue I have encountered in other provinces and I think it is a very important one. Transitioning from a difficult home environment into adulthood is very challenging. I know that in Ontario there are cases that if a child decides for some reason that after the age of 16, that she will return to her mother and then two or three weeks later discovers the mother is still on drugs, she has nowhere to go. She turns to the street, and often becomes involved in street prostitution or street life.
I think this is a big gap and it is a big problem across the country that we should be addressing. When you try to think of how a federal agency could help the provinces, it is the idea of trying to get a uniform age across the country. It would have to be negotiated, of course. The convention says that a child is everyone under the age of 18 years.
Ms. Ferrara: You make a valid point that it depends on what province you live in. In some provinces, it is up until the age of 18 years and in others, it is up until the age of 16 years. The youth that I was referring to were youth that were not even in the system prior to their problems.
We do also see situations where youth are in the care of protective services but because there have been so many placement breakdowns it is almost as though they wait until they are 16 years of age and then cut those services.
Senator Pearson: I am sure that some of the arguments are historical, some of them are financial, but the costs that they place on the system as they get older probably far outweigh the costs to give them the support in that very, very important transitional age between 16 years and 18 years. Some of us find the age goes much longer than but there is a limit to what you expect.
Ms. Brennan: If you look under the Children and Family Services Act, it is not that the province is unable to provide the services. The act states that the province "shall'' provide protective services to children under 15 years, and "may'' provide services to youth over 16 years. Unfortunately, that has come to mean "more often than not.''
Senator Pearson: Legislation could change that situation.
Ms. Brennan: Right, but the practice has not been there and that is that service gap.
The Chairman: When this issue first came to light some 25 years ago, one of the rebuttals was that parents had made some representations to provincial authorities saying that it was too easy for children to leave when things got tough at home. They said that the province was intruding by making it easier for children not to deal with their problems within a home context.
Is that still one of the reasons that there is the gap?
Ms. Brennan: Up until three years ago, we did not have legislation in place. At this time, there are three criteria that the child must meet, one of which escapes me right now. The other two are attending school and unable to live back at home or with a guardian. One of the barriers is that the youth has to have parental confirmation that the youth is unable to return to the home. In some cases that is fine with the parent who is happy to pass of the responsibility to the government. In turn, the government seeks financial compensation from the parents for the care of that child. As soon as parents understood that it was going to cost them money, they decided to keep the youth at home.
It is a different world now than it was 25 years ago and parents' responsibility has gone to the wayside and one of the excuses for that is, "Oh, they have too many rights.'' They may think they have too many rights, but many parents do not adhere to the basic human rights covered within the convention. Parents must accept their responsibility to seek services if there is an issue at home, if the home environment is the reason why the youth is seeking protective services. The parents have to have some consequence as well.
The Chairman: You seem to be ahead of the rest of the country in using the Convention on the Rights of the Child.
Do you point out that while there are children's right these rights are embedded to the family? When we work on the rights of the child, it strengthens the family unit.
It is unfortunate that in some areas of the world, children's rights are seen to diminish the rights of parents and of families.
Have you done anything to balance those opinions?
Ms. Brennan: We have done well in that area. We deal with youth that are already in care and custody of some kind. They may be in temporary care agreements, permanent care agreements, in correctional facilities, or in police detention facilities. Many are transient between various departments such as justice, health, education and community services.
Even though the broad mandate of the Children and Family Services Act is to maintain the integrity in the family unit or family support unit, we recognize the lack of support that is available for these youth.
We try to teach about the UN convention so they have a fallback to have better supports in place so that families can have their responsibility but also be educated on today's issues. The UN convention assists parents and caregivers in making a child's environment a good environment.
We also promote to the children and youth, and although we promote their rights we make it clear to them that they also have responsibilities. With those rights come responsibilities so it is not just a one-way street.
A selling tool to have buy-in from government is that we are teaching both youth and families and we need those supports in place so that families can achieve harmony within their unit.
The Chairman: You noted some of the issues facing young people in this province including homelessness, poverty, sexual abuse, gaps in the protection system, gang-related activity and bullying. You added HIV/AIDS and for the first time, we hear a direct reference to HIV/AIDS outside of the health system committees.
Please inform us about HIV/AIDS here in Nova Scotia. Is HIV/AIDS a growing trend or is growing because of a lack of resources or some other reason?
Ms. Brennan: It is a lack of resources and awareness. The topic is not discussed in any Nova Scotia material on youth rights and issues. We have a good, proactive process for the adults, awareness and so on, but looking through the youth materials, we realized the lack of material and information and that prompted us to state that HIV/AIDS is an issue in Nova Scotia.
Just because we are small does not mean that HIV/AIDS does not touch our communities.
Senator Oliver: Do you have any statistics on HIV/AIDS?
Ms. Brennan: No, and that is part of the problem.
The Chairman: We must address this worldwide issue.
Ms. Brennan: We deal with high-risk youth who fall into categories or probabilities for HIV/AIDS. How can we prevent and educate if we do not have the tools to do so? In certain health programs, there is passing mention of it but full-out education and advertisement on the subject is lacking.
The Chairman: There seems to be an issue across Canada with respect to autistic children. Can you comment on that subject?
Ms. Ferrara: We need more research on that subject. We receive calls from many parents experiencing long delays in getting early childhood development support for their autistic children. There is this window of time where early intervention is the key to helping these children.
In the last few months, the parent's calls are in regards to waiting lists, lack of resources, and lack of funding. We do not have any statistics with us here today but autism is a hot topic with the media.
We believe this to be a systemic issue with lack of resources and funding driving the problem. We have too many children with this diagnosis and not enough resources in place to get the early help that these children need. Research has shown that early intervention is the key and if we do not get to these children as early as possible, we will see the repercussions later on in their lives.
The Chairman: In the jurisdiction we have just come from, one of the problems was that there are pre-school services but that they stop at school age. Is that also the trend here in Nova Scotia?
Ms. Ferrara: Again, we do not have a lot of exposure to that particular issue, although, it is coming to our attention more and more. I hear about early intervention but there is a lack of resources. It seems that there are individual teaching assistants assigned to the child but I do not think there is a lot of follow up with the child; most of the focus is on early intervention. You raise a good point: what happens after the child is in school, I do not know.
Ms. Brennan: It is fair to say that there is a lack of programming after the preschool age because the complaints do not concern preschool-aged children. Therefore, it is safe to infer that there are issues about resources after that preschool age. That is why they contact our office to find out about any available funding.
While the research identifies preschool age as the primary age of focus to get intervention and help, realistically you are not going to capture everybody at that preschool age. Services after elementary and even leading into junior high age or secondary age are lacking.
Senator Mercer: You have identified a number of issues and emerging areas of concern for youth in Nova Scotia. As we all know, Nova Scotia is the economic hub of Atlantic Canada and we attract people from around Atlantic Canada and particularly the two other Maritime provinces.
Do you see many people from New Brunswick and Prince Edward Island and perhaps Newfoundland? I am not suggesting that it is a bad thing if you do; I am trying to see if there is a trend.
Ms. Brennan: There does not seem to be an influx of children and youth complaints coming to our office from other provinces. However, Prince Edward Island does not have an ombudsman, a child advocate or a child and youth ombudsman and I wonder what is going on in that province.
Newfoundland has a child advocate and is able to deal with internal issues. We have some complaints from families that are in two provinces and we try to work with both provinces to resolve issues and complaints as they affect the child that is living in our province. In that way, we do have communication from parents living in Newfoundland and occasionally New Brunswick and seldom P.E.I.
Senator Pearson: I want to talk to you, as you will not be surprised, about article 12 and youth participation.
Do you have a group of young people who keep you up to date on how they perceive the issues affecting the youth in Nova Scotia?
Ontario and Saskatchewan have such groups.
Ms. Brennan: We do not have such groups within our office as the other provinces do. We travel to our youth correctional facility once a month, the one in Cape Breton once every four months, the secure care facility every two weeks, and the group homes on a regular basis. We have an audience impacted by government services. We provide an information session on the role and services that our office provides and then we ask for their feedback. We ask them about their experiences with government institution and programs.
We sit on numerous youth committees to have feedback, again on a different playing field, not one where youth are in such a closed setting. We sit on the Canadian Council of Provincial Child and Youth Advocates and this coming September the focus of our annual meeting is how to achieve authentic youth engagement or participation within that council. We are there for a voice for our children and youth but there are no children or youth on that actual panel, which is embarrassing, I will say. We are looking to improve that council.
Within Nova Scotia, while we do not have somebody necessarily within the confines of the walls of our office, we have a vast audience of youth who are better able to comment on government to access the justice system, the health system, community services and education. They are definitely not shy about telling us about their experiences with government. They are not afraid to tell us about both the good and bad experiences and how they think we can change the bad aspects. We file the comments in monthly reports and send them back to the departments. We make recommendations about how we can change government policy because while our primary focus is to ensure that policy is administered properly, we want to make sure that that policy is fair. We look at best practice standards, youth involvement and youth recommendations.
I am confident that our office has been effective in systemic change. Kudos to those youth, I would say.
Senator Pearson: When we were working on the National Plan of Action for Children, we met with a group of young people in New Brunswick. We had a round table discussion with these youth and Senator Andreychuk asked about their number one concern on youth said it was oxytocin and drug addiction. This was obviously of huge concern to the young man. It was certainly the last thing that I expected anyone to say.
Do you employ this round table technique here in Nova Scotia? It might be useful to meet with youth other than the ones that are directly served.
We heard from youth that they are concerned about sexually transmitted diseases and not just HIV/AIDS. They were forthcoming about the degree of sexuality in which they are involved and were frank that they are uneducated about many diseases et cetera.
I know you are trying to address HIV/AIDS, but the youth we spoke to were equally concerned with STDs. They consider HIV/AIDS to be the at the worst end of the sexually-transmitted diseases but there was a lot of concern that there was a refusal in the adult population to pay attention to the fact that they need more in terms of information, support and so on. New Brunswick has the more controversial sex education program.
I am not quite sure how an ombudsman working for children and youth is your way unless you make some representation on their behalf.
As a final comment there is a study, a Senate study being conducted by Health Canada on street-involved youth of which Halifax was one of the sites. I believe they were beginning to gather some information on the incidence of HIV/ AIDS so I do not know whether you have had that feedback from them or not.
Ms. Brennan: No.
Senator Pearson: I will follow up on that for you.
Ms. Brennan: I know within Nova Scotia we are looking to have a sex education program similar to New Brunswick but that has met with huge controversy to the point where parents are choosing to pull their children out of the class. We have an informative booklet but unfortunately the parents do not approve of it and we are holding back on its distribution. We might have to water it down a bit, which is also unfortunate.
Senator, the only round table discussions that we attend are the ones we actually sit on. We do participate but we do not convene them.
We seek round tables to attend and we are on various committees that hold round tables but there is none actually put out specifically by our office.
Ms. Ferrara: We consult various youth groups such as the National Youth and Care Network. In Nova Scotia, we have a youth and care newsletter group published by a group of young people involved in the child welfare system. They produce a great newsletter and we often consult with them and have presented to them as well.
We would love to have a youth-designated position in our office because we have seen the success of the position in other provinces. We try to consult as often as possible, and as Christine said, during our regular proactive visits to different facilities and attending different meetings and discussion groups we learn what is important to the youth of our province. You have to listen in order to understand their important issues. That is the only way we can help them.
Senator Oliver: I would not want the record not to show that in Nova Scotia we have an endowed chair for the research and study in autism at Dalhousie University, funded by the Craig Foundation to the tune of one million dollars.
Halifax is a leader in autism research. One city block from here the Craig Foundation has a house for parents of autistic children where they give counselling, training, education, and advice. In October, there will be another fundraiser here in Nova Scotia in Halifax to raise another $200,000 for these very things.
I would not want the record to indicate that in Nova Scotia we are not very proactive in raising the money in doing the things that are necessary to get research done in this area.
The second thing, near the end of your remarks you were giving a list of the emerging areas of concern in Nova Scotia and every one of us made note of them. Everyone has commented on them. You mentioned the gap in services for the children of 16 and 17 years. You discussed mental health, sexual abuse, homelessness, HIV/ AIDS, and so on.
I want to discuss mental health. Senators Keon and Kirby head another committee that is doing the largest Canadian study of its kind, on mental health issues.
Did your group make a presentation to that committee?
Ms. Brennan: Yes, Senator we did make a presentation to that committee.
Senator Oliver: Good, I am very happy to hear you say that.
Ms. Brennan: Actually, that was my first experience with a Senate committee. I was thrown into it and it was a very interesting experience presenting to that committed.
Senator Oliver: That is excellent.
Ms. Brennan: We have conducted research on mental health issues and youth, particularly youth that are incarcerated in care and custody of the province. We realize that services for those particular youth are lacking. While we do recognize that there is a lot leading edge research within Nova Scotia, we want the supports within the community to match the research so that we can really hold ourselves up to a higher bar; that is for sure.
Ms. Ferrara: We also want to help the parents of autistic children. We wanted that on record as well.
The Chairman: I take it from your comments that we are easier than the first Senate committee you attended.
Ms. Brennan: Senator, both experiences have been great. The ombudsman presented at the previous committee. We prepped him for his presentation and he did a great job, but he suddenly referred to me during the question period. That was when I was thrown in and had to answer questions from honourable senators. I am much better prepared today.
What a phenomenal experience and please ask us any time and we will come back to answer any questions. We are delighted to speak to a federal body anytime. You have been very kind. Thank you very much.
The Chairman: We in turn thank you for your phenomenal work and the fact that you have taken on the Convention on the Rights of the Child and are doing the best you can within your own responsibilities.
During the course of our study, we have come to realize that that people are not aware of the Convention of the Rights of the Child, both in the public arena and in the governmental services. Any sort of education about the convention, of course, is the first step to ensure that it is implemented. You will hear from us in that we will continue to make this our issue.
Senator Pearson: I think there are many things that Nova Scotia has to teach the rest of us and that is one of the things we are doing with this trip is finding out from different places what positive steps are being taken in this country.
New Brunswick is uncertain whether the rights of the child will fall under the ombudsman's office. I know that Nova Scotia follows that trend.
Please tell me, from a mechanical point of view, do you think the system works well here in Nova Scotia?
Ms. Brennan: You have to have it under that realm. Not to take any credit away from offices that are strictly child advocates but that ombudsman role is the key in that we are a perfect fit because we are able to identify issues within, via the public, about government services and then effectively change or make recommendations to have direct policy impact. That is one of the benefits of our job is that we actually see these complaints come to fruition to have systemic change.
Our independence is our golden selling point because we are not responsible to either the complainant or the respondent, such as the government. We are able to make those recommendations without fear of reprisal from anybody. That is the key and we are a perfect fit.
I encourage other provinces to follow our example. If there is federal commissioner, I strongly encourage a blended role, not solely an advocacy role. While we do promote ourselves as providing a voice for children and youth, we also want to make sure that government is also comfortable to come to us with policies prior to their implementation.
We want to have an open dialogue so we can suggest that the government refer back to the UN convention. We want the convention to become second nature in that we do start to have obligation. While it is not a legal obligation, we have a moral and ethical obligation so that government will have that buy in. Once you get it started and underway it would be a lot easier to have buy-in but you definitely need that national standard. I just hope Prince Edward Island starts to recognize that they have children and youth in their province that deserve the UN Convention on the Rights of the Child.
Senator Pearson: I was very glad to hear that you were working with the University College of Cape Breton and the Centre for Children's Rights. I have been increasingly impressed with their work and the work of the focus groups prior to the UN study; our consultation in Toronto on the UN study on violence. They did a number of focus groups, some on the reserve that is outside of Sydney and so on and those were extremely powerful statements of how the kids perceive their rights. They see a lot of violence and I do not know whether that has been an issue. You do not actually list it that study.
Ms. Brennan: No. In Nova Scotia it has not really come to the forefront of issues because again it comes down to that federal/provincial line that has been drawn, especially with First Nations and Aboriginal issues.
While I was in Toronto for the Canadian Council of Provincial Child and Youth Advocates meeting, we did have somebody come in from the Department of Indian and Northern Affairs. They are having these tripartite round tables to address specific child and youth issues on reserve.
I asked them about the rights of children off reserve. Our office is strictly limited to provincial and municipal policy and legislation. I see a service gap for youth that are on reserve and especially youth that are off reserve. I am aware that this situation is in the national focus and that First Nations and Aboriginal children are getting the information that they need to know.
Senator Pearson: It was not just First Nations and Aboriginal.
Ms. Brennan: Right.
Senator Pearson: Groups from Sydney and elsewhere expressed concern about violence, and you mentioned gangs during your presentation. Do you receive many complaints of that nature?
Ms. Brennan: We see the problem in our youth correctional facilities. We see it in certain regions, not necessarily in the cities. I mean I am sure there are pockets of gangs in the city. Well, I know there are gangs in the city.
Senator Oliver: Do you have incidents of swarmings?
Ms. Brennan: Yes, but the swarmings are in areas rather than associated with certain creeds. It is becoming a disturbing trend, I agree. It does get media coverage. Whether or not the actual numbers have increased statistically is a little bit different but media coverage has certainly brought a spotlight on that issue.
Senator Pearson: The University of Cape Breton research concerning the impact on the curriculum is very positive and we will consider that impact in our recommendations. We are the only province to implement education around the convention.
Ms. Brennan: We thank the University College of Cape Breton, especially Dr. Covell and Dr. Howe because they were instrumental in teaching us the mantra within the UN Convention on the Rights of the Child. We have tried to spread the convention all across the province. The university has conducted excellent, excellent work and we are definitely grateful. They have helped us shape our database so they deserve the credit for that as well.
Senator Pearson: Great, thank you.
The Chairman: Again, thank you for coming this morning and giving us a much more optimistic approach to the convention than we have had up to this point.
I simply hope that you continue to let people know that ratifying a convention is not enough. It is going to take education and some action to bind Canada to the convention. We have more work to do.
We thank you for bringing the Nova Scotia perspective to us. We hope you follow our work and that our recommendations will be of benefit to you.
Senators, we are very pleased to have before us Professor Wayne MacKay of the Dalhousie Law School who is well- known to Senate committees, having testified often on many issues to do with human rights and the law.
Professor Wayne MacKay, Dalhousie Law School: Thank you very much. I have on occasions appeared before Senate committees and I always enjoy the experience. I find that senators are inevitably well prepared and ask good and tough questions so that is always a fun experience to have. I realize you want me to be fairly brief so I will try to do that to leave lots of time for questions. I hope that you have in front of you my longer submission. It is a bit longer than usual because I am very interested in this subject, and because there are a number of committee members who are not here today. I have left a complete submission with those senators in mind.
My choice of topic in terms of your important and broad mandate concerning the protection of the rights of children under international guarantees is education. Obviously, there are many other areas of concern, some of which you heard earlier today.
Today I will focus on education and, as the title of my submission indicates, apart from the obvious importance of education, it is a useful microcosm of how we respond to the rights of children or we balance these rights and other concerns in a particular context. I think education is a useful case study.
The editorial part of the title is "Rights by Example: The Education Context As a Microcosm of Society's Recognition of the Rights of Children.'' My thesis in part is that we must set a lesson in practice more than just in what we say. How do we regard the rights of children? Do we teach by example that students have rights? That is the first part of the introduction.
I have also included a handout, which I am sure you do not need, just for ease of reference, on some of the key sections related to education from the Convention on the Rights of the Child.
I will start by looking at some of the key sections including article 28, which guarantees a right to free primary education. I am acting chair of the Rights and Democracy Board, and one of our Millennium Development Goals is free primary education for all countries in the world.
On page 2 of my brief, you will see the heading "International Human Rights Guarantees.'' Canada has been a signatory of the Convention on the Rights of the Child since 1992 and among many others deals with the right to identity and the right to high standards of health and healthcare. My focus is on education and to some extent on free speech.
The convention, like some of our own legislation, highlights the special status of children in our society. Our children have rights but we recognize that they are vulnerable and need protection. We strive to find a healthy balance between the two.
Article 19 is important in relation to schools and to the guarantee of freedom from violence. I will discuss the issue of bullying in schools, school violence and the corporal punishment, which is discussed in section 43.
Article 19 gives children guarantees against violence and those rights are linked to the concept of human dignity, which is central to our Charter as well.
I am currently engaged in a review for the Government of New Brunswick on inclusive schooling focused on access for disabled, mentally and physically disabled students. Inclusive education is a broader concept that links quite nicely into various guarantees in the convention, the guarantees of access for the disabled in article 23 as well as the general guarantees in article 28. Inclusive education seems to me a very important overall goal for education.
Equality and dignity require that we belong to the community and that we have the benefits of the community. The benefits of education mean that a child will reap the benefit of society. A child without primary, secondary and increasingly even post-secondary education really cannot get many of the benefits in society.
New Brunswick is a leader in inclusive schooling. You asked questions of the previous panel concerning autism. I will be happy to answer any questions you might ask me during the question period.
The main point about inclusive schooling is the clear approach of the courts in a couple of cases, one in B.C. and one in Alberta, that the government is responsible for providing quality education and equal access to education to our youth. The courts do not like it when the government talks about passing the burden from one department to the other. They are not concerned under whose jurisdiction education falls; they feel that the government as a whole is responsible for the education of our youth. They point out that the government is responsible for meeting the obligations under the Charter. I believe that the same should apply to obligations under the Convention of the Rights of the Child; the government as a whole that has the responsibility for education. The courts do not accept the defence that it is the problem of such and such a department. The courts are sending a very clear signal that it is not acceptable and that is important.
One of the positive developments in the area of student rights and education is a growing awareness of rights consciousness, that students do have rights, of course they have to have limits, but that they do have rights.
No doubt, senators are aware of the Malcolm Ross case; the anti-Semitic comments outside class. In that one the Supreme Court of Canada in a rather extraordinary fashion, actually put upon the school boards a duty to proactively work to make schools discrimination-free zones, that school should be a place that is free of race discrimination, sex discrimination and disability exclusion. That is a very broad goal and a very important goal set by the Supreme Court of Canada's Justice La Forest, who wrote the key decision in that case. That is a positive development in trying to give effect to the Convention on the Rights of the Child.
In another Justice La Forest case, the Audet case emphasized the trustee relationship of teachers. That is a rather important point when we come to the other criminal justice area that teachers are in a special relation of trust in relation to children. That special relationship must focus of the best interests of the child, and that relationship should not be abused.
I move on to the interesting balance between freedom of speech for students and safe schools, and the issue of bullying and safe schools. I set out some of the material there but I will not repeat that. We are all familiar with the challenges in schools. Bullying and students who commit suicide at least in part because of bullying and violence in schools are significant issues that must be addressed. These problems emanate from all over the country from Red Lake to Alberta, Nova Scotia and elsewhere.
One element of the issue is student free expression and because of this legitimate concern about order and safety in schools, there has been a bit more of a tendency to limit speech that has any kind of violent undertones. I am now talking about content. Obviously violent form is not accepted. Even under our Charter violent expression, in terms of rapes, assault and so on, is not constitutionally protected but violent content generally is protected, subject to section 1. The burden is to justify why it should not be and there were a couple of very high-profile cases out of Ontario. One high school student in Ontario was incarcerated by police because he wrote a creative story about a student who, after being harassed by bullies, took revenge by planting explosives throughout the school. Although it was shown that the student had himself been the victim of bullying, no evidence was found that he had actually plotted any revenge. The student was arrested and spent Christmas and his 16th birthday in jail. The court concluded that the boy should not have been arrested. In fact, much of the same had happened to his brother. These and other similar cases are referred to as the "twisted'' cases. You can understand, in the post-Columbine period why the school authorities reacted in that way.
What I am cautioning here is that while censorship is one response, it may not be and is not, I do not think, the most effective response. We must find the root causes for these violent acts in schools. We have to make a judgment call about how far to go on free speech but simply shutting down the speech may not be the best thing to do. We can certainly have more discussion about that issue.
I will highlight a couple of less controversial cases of student free speech. On page 13, I discuss the Lutes case and the "Let's Talk About Sex'' case. In the latter case, a student sang the song of that name in the presence of a school board authority and the student was suspended. The song is about HIV/AIDS. The court told the school authority that he did not have the right to suspend the child. The court said;
The problem arose as a result of overreaction to an inoffensive song that carried a powerful message.
The court involved itself in the business of the school, which is something they did not do before. The court made it clear that the authority had to justify why he would do such a thing, and that being offended was not enough to suspend a child.
I am sure that senators are familiar with, the Mark Hall case and the right to take his male date, his gay date to the prom. In this case, the court, in an injunction proceeding, upheld the boy's right to do so. The court said:
School is a fundamental institution in the lives of young people. It often provides the context for their social lives both in and outside of school hours. Recreational activities such as sports, clubs and dances, which are important in the development of a student's development, are often experienced within the school setting. Exclusion of a student from a significant occasion of school life, like the school prom, constitutes a restriction in access to a fundamental social institution.
That is pretty strong language, though. Students will be interested to hear their prom is a fundamental social institution but, in any event, there it is.
These two decisions show us how far we have come in our thinking about the rights of the child.
What is the balance between student free speech and safe schools?
Another area of interest to me is the intersection of crime in schools, particularly on search and seizure because there, of course, the critical question is reasonable expectations of privacy. While the courts have made it clear that the Charter guarantees of freedom from unreasonable search apply in schools, they have applied a lower standard of expected privacy. Again, maybe that is acceptable; maybe it is not. We could debate that. In some ways, it is built on the prison model.
We would readily accept that prison inmates have a lower expectation of privacy than the general public, but I have argued, probably irreverently, that prison inmates actually have a better situation than students do in terms of section 8. I am not sure if the argument is as good for restricting the privacy expectations of students.
The Supreme Court of Canada in the M.R.M. case adopted the lower standard of privacy for students. The court ruled that the school does not need reasonable and probable grounds to search a student's locker. You need a lot less to search a student, either his physical presence or his location, and that a teacher or a school administrator does not have the restrictions of a police officer in terms of reading Charter rights to the student. From a teacher point of view, I understand that they are not trained as police officers. The problem is that while it is appropriate when it is an in- school discipline matter, if the consequence is also a Youth Criminal Justice Act offence for the student, why are their rights different depending upon who searches them? In fact, if I were advising students these days I would tell them to insist on having a police officer because that is what all these cases tell you, that if a police officer had done the search, the evidence would have been excluded because of the lack of suspicion and so on. If the school conducts the search, they immediately hand the confiscated items over to the police. Therefore, oddly enough, the best advice is to have a police officer do it.
From a school point of view, it seems if you are dealing with serious criminal matters, you do better not to involve the police. This is a significant issue.
The M.R.M. case is a particularly interesting case. The case from here in Halifax is interesting because the vice- principal with a RCMP officer in the room conducted the search. The Supreme Court of Canada said it was still a school administrative search and not a police search. The court recognizes that there could be times when they would be acting as agents of the police. That is another area for consideration in terms of the rights of students. We have to look at whether that distinction is justified.
On page 19 of my brief, I deal with the contentious issue of corporal punishment. In the past number of years, there has been a significant social shift in that we do not accept physical responses to students and children. However, we still have section 43 of the Criminal Code that states that force for correction is still part of our law.
In The Foundation for Children and Youth case, the Supreme Court of Canada rejected constitutional challenges to section 43 on three grounds. They argued that it violated section 7 as being too vague; violate section 12 as being cruel and unusual, and section 15 as being unequal.
In the majority decision, Justice McLachlin held that section 43 did not offend the dignity of young children and as such did not violate section 15(1) of the Charter. At paragraph 68 of the decision, Justice McLachlin states:
Children often feel a sense of disempowerment and vulnerability; this reality must be considered when assessing the impact of s. 43 on a child's sense of dignity. Yet, as emphasized, the force permitted is limited and must be set against the reality of a child's mother or father being charged and pulled into the criminal justice system, with its attendant rupture of the family setting, or a teacher being detained pending bail, with the inevitable harm to the child's crucial educative setting. Section 43 is not arbitra4rily demeaning. It does not discriminate. Rather, it is firmly grounded in the actual needs and circumstances of children.
She is Chief Justice of Canada and makes the rules and I do not, but it is a somewhat surprising conclusion when Judges Binnie, Arbour and Bastarache and others had a different view and thought the decision created a constitutional problem.
On pages 23 and 24 of the UN Committee on the Rights of the Child recommended that Canada repeal section 43 of the Criminal Code. The UN stated that in line with the guarantees of non-violence in article 19, their view was that Canada was in violation of that article. In fact, about one third of the European Council has repealed their equivalent law. Seventeen of the states under the European Council have now repealed their equivalent to section 43 — corporal punishment — and Canada has not.
The UN committee has one view and the Supreme Court of Canada has another. There is currently a bill before the Senate, Bill S-21 that would repeal section 43.
The Chairman: It is still in the committee.
Mr. MacKay: Nothing in the Supreme Court decision would prevent Parliament from repealing section 43. All they said is that it is constitutional but if Parliament wants to be more enlightened than our courts, they are free to do so.
Senator Oliver: Parliaments make laws.
Mr. MacKay: Exactly.
Let me just come to my conclusion. There are some areas of advance, on discrimination-free zones and an increasing focus on inclusive education. There is some concern that bullying and school violence may reduce free speech and process rights for students.
In the area of corporal punishment, section 43, I support those arguing for repeal, clearly in relation to teachers. It seems to me that section 43 as a defence for teachers is almost beyond debate. In relation to parents there is still some debate about whether it should be totally abolished or not but in the Children Foundation case the Supreme Court of Canada substantially narrowed the use of section 43.
I suggest that either the continuing committee of human rights officials or officials on human rights have a re- invigorated mandate to monitor our commitments under international treaties. Perhaps an ongoing Senate committee looking at human rights implementation should monitor education. An ongoing watchdog committee could stop the negative UN reports on Canada not meeting her obligations under the convention.
The Chairman: Thank you and I appreciate there is more in your presentation than you have pointed out and we will have to study it more carefully.
Senator Oliver: Professor MacKay wears many hats and one of them is as a leading expert in constitutional law in Canada. Madame Chair, with your permission, I would like to put to him a question that he has not raised so much in his speech but one that has been raised with our committee in Europe and here in Canada.
We met with the UN committee in Geneva and they asked us questions about our Supreme Court ruling but the question I want to put to you really is as a constitutional expert.
Canada has made significant efforts in implementing the rights and obligations of the various international instruments concerning the rights and freedoms of children, and in particular on the Convention of the Rights of the Child. However, Canada does not have a systematic process, a legal process to implement these rights in Canadian law given our federal system. The federal government has certain powers and the provinces and municipalities have others.
What system would ensure a more systematic approach so you would not have the rights of children being enforced in one way in British Columbia and another way in Newfoundland?
What type of constitutional system would meet international obligations in Canadian law in the provinces and the territories?
Mr. MacKay: You are correct; children's rights issues and education fall under provincial jurisdiction.
The federal government signed the Convention on the Rights of the Child that makes Canada as a nation state responsible for the implementation of that covenant. However, under our constitutional system the provinces and territories are responsible for the implementation of the covenant. that.
As the Labour Conventions case indicates, the federal government cannot enforce implementation. There is a counter-view that under peace, order and good government, some federal jurisdiction to insist on implementation may apply. One might argue for human rights commitments signed at the federal level. That is one argument.
Senator Oliver: Is there a case that we could use to hang our hat on for that for peace, order and good government?
Mr. MacKay: Chief Justice Laskin now deceased in Capital Cities Cable case put forward that idea that peace, order and good government should be a source of authority for treaty implementation. His dissent might be worth looking at in order to fulfill the convention's obligations.
The courts have not reversed the Labour Conventions case. The argument against it is that the danger from a federal/ provincial power point of view is that the federal government could add to its jurisdiction simply by signing a treaty, that if you sign a treaty you gain authority to implement. The provinces are uncomfortable about that, as you can understand. That is probably why Labour Convention still stands. Perhaps, there is a middle position and it comes back to monitoring and educating agencies.
Your question really was how we get national standards of implementation across the country. The Charter is one vehicle because all levels of government must abide by the Charter. As we get increasing definitions of rights under the Charter, those rights must be applied right across the country. That is one avenue of implementation.
The Convention on the Rights of the Child could be another very useful vehicle for that implementation. It does not have immediate effect; it is persuasive only.
This committee might educate and monitor the provinces and territories to our commitments under the convention. That is indeed, one of the UN recommendations under the UN Committee on the Rights of the Child. That committee recommends that the federal government should educate all provinces and all territories about their commitments under the convention.
It seems to me that engaging public opinion makes the chances greater that provincial legislation will become consistent with our international obligations. For example, is Nova Scotia's education statute consistent with our international commitment and sufficiently inclusive in light of article 23 on disability? Is it sufficiently inclusive in light of our guarantees against sex discrimination or race discrimination?
I think that if people knew it existed and we had a mechanism to draw it to the attention of government authorities, then maybe that would provide greater consistency. That might be another way.
I think a committee that takes on the monitoring role and the education mandate might help to provide greater consistency.
Most people do not know about the Convention on the Rights of the Child. In fact, if you did a survey of government departments, my guess would be that there would not be a high level of knowledge or understanding of the convention. That would be an important starting point.
That is my practical answer, short of changing the Constitution by amendment or arguing for federal implementation of our international obligation.
Senator Oliver: What about some form of a standardized, enabling piece of legislation that could apply to all provinces and territories? What do you say legally to that?
Mr. MacKay: That would be an interesting route to take. That would directly raise the debate about whether that is education or children's property and civil rights in the province under section 92.13 and therefore not valid federal legislation. Yes, that is where we might presumably argue about peace, order, and good government. That is where we might argue that as a nation state, if we do not do this we are failing to meet our international obligations under the Convention of the Rights of the Child. It would raise the debate and give the opportunity to re-evaluate the implementation, and maybe do it in a way that would not as directly challenge provincial jurisdiction.
The Chairman: If I understand Senator Oliver we have missed the moment for the Convention on the Rights of the Child; we have ratified the convention. The Vienna Convention says that we are not interested in your own internal problems and that if you ratify you put yourself on the line of saying you are going to make your best effort to implement the convention.
At this point in time, there are negotiations with the continuing group. These negotiations are questionable to us because we cannot seem to find out what this continuing group does. From my own personal experience I understand how these federal and provincial negotiations proceed before ratification.
How feasible is it to follow Senator Oliver's suggestion of a method of negotiation between the provinces and territories prior to the ratification of UN convention?
It is important that all levels of government understand that much of the human rights law is meaningful. Is it possible to provide a mechanism for uniform enforcement before signature and ratification? How feasible is that as a template for future conventions?
Mr. MacKay: That is an interesting idea, really. As I understand this continuing committee, which is a little mysterious, the difference is that it is post facto. The only reason I know a little bit about that is that when I was Director of Nova Scotia Human Rights, the director was on this committee. I do not think that is the case anymore. I think now it is a representative from the Department of Justice. Part of their mandate is to educate, monitor, and send reports to the UN committees on Canada's compliance with the convention.
You suggest that we move that back and have a federal-provincial dialog about the implementation prior to ratification. This is an interesting suggestion.
As I understand it, the continuing committee, monitors and educates on an inter-provincial basis after the ratification.
Your idea seems good.
One downside is potential delay, that already these processes are slow and I can see it perhaps slowing down, but it would not have to be if you started early enough.
I think you need an effective mechanism that educates all the potential government implementers about what the convention means. The provinces and territories must know what the convention means in their daily lives. When is there a guarantee, like article 19 of freedom from violence, what does that mean in respect to how you handle child abuse registries, bullying in the schools, and other children's issues.
The continuing committee meets twice a year, if that, and as I say, it is not a well-known entity.
The Chairman: We do know that the ministers have not met for over a decade.
Mr. MacKay: I think 1988 was the last time the ministers met.
The Chairman: Senator Pearson and I have had this discussion, and we have had it in the committee. Before the Charter of Rights and Freedoms, there was not any systematic way of looking at our rights in Canada, throughout our legislation and our policies. After the Charter of Rights and Freedoms, governments were mandated within each department and ministers were mandated to take the Charter into account. The minister now has to sign off a certificate before any legislation is filed in cabinet that in fact, they comply with the Charter of Rights and Freedoms.
We have been tossing around whether a similar process should be in place for the Convention of the Rights of the Child and other human rights legislation. To what extent it would be formalized, we still need to discuss, but the process would obligate the bureaucracy to take into account international human rights obligations as we structure our policies and laws.
Mr. MacKay: That is a very good idea and in some ways, it might be easy to implement because, as you say, there is already a review for Charter compliance. The Sharpe case, for example, shows that the Supreme Court of Canada increasingly interprets the Charter as consistent with our international commitments. You could argue that they already have an obligation to do that because how can you properly assess Charter compliance unless you consider the Charter in the context of our international commitments.
The Supreme Court of Canada has said that the international commitments are persuasive and where possible the Charter should be interpreted consistent with them. It seems that would be a very logical extension.
Senator Pearson: I have another question around education and a new convention that is emerging. This might be the right time during the new convention on disabilities to push this idea before Canada ratifies the convention. We are interested in the continuing committee and its anonymity. The committee exists and we understand that we must follow this process before ratification. We have the committee because it took so long to ratify the covenants. The committee itself is not a high-level committee and it might be helpful to raise it's profile. We feel that many of the international do not get adequate airing in connection within the parliamentary legislative system.
We do not know if we should bring this fully into Parliament or into the Legislatures as we go through the process. The optional protocol on child prostitution is just on the total verge of finalization. It has taken ages because the process is so cumbersome. Alberta did take the optional protocol through cabinet because it is an educative process but I do not think every province did the same. We are just waiting for one other little piece before we can deposit the instrument for ratification. We all know that the process is too slow. The optional protocol on child prostitution is a no-brainer.
There is something wrong with the mechanism that needs a lot of oiling. We are trying to find the right oil and some of your suggestions will be helpful in our quest to speed up the process.
I want to come back for a moment to education as an example, not because of the federal/provincial challenge but because of something that one of the young people said to us in the round table we had in New Brunswick. We were having a discussion about the political rights of children.
You touched on the subject of privacy and I would be grateful for some clarification as to how privacy melds with the civil and political rights of children. One of the youth discussed this subject with us at our round table discussion.
What are the political rights of children? What does freedom of assembly mean for the educational system?
We discussed whether we should lower the voting age. You made the comment that the school is a model for democratic behaviour and democratic citizenship. The youth pointed out to us that school councils and other school- related electoral processes are basically popularity contests and this prepares them to think about elections as popularity contests. We need to discuss these implications. We need not discuss it today abut I am interested in some reflection from you on the political rights of children as they could be exercised within the educational system.
Senator Oliver: I will also mention the girl who said that it was an invasion of her privacy for the school to go into her locker.
Senator Pearson: Yes and another girl talked about the teacher who grabs your note that you are passing to your friend and reads it. Grabbing may be okay but reading?
Mr. MacKay: It says "search and seizure.'' It does not say search, seize and read. It does raise the interesting point that children do learn by example in schools. Civil as well as political rights are learned in schools and the participation in student councils is a good learning tool. Democratic rights under the Charter are not necessarily directly applicable but one of the recommendations from the UN committee on the Rights of the Child is that students receive an education concerning their in a rights-based society. The UN suggests this education be part of their school curriculum. Should we teach the students about the Charter of Rights? Yes, I believe that we should teach them about the Charter. The UN conventions and others suggest that education should prepare our children for the citizenship of tomorrow. They should be well informed participants and learn to be creative about democracy. We know that the best way to do learn about democracy is to practice it.
Senator Pearson: The children raise the issue that the school councils are without power and that in some ways the councils are a mockery of democracy. I do not want to put you on the spot but I would like you to reflect on that statement.
I know of schools that have elections so that the young person elected as minister of the environment is in charge of the school's environmental action; the young person elected minister of foreign affairs is in charge of the world issues club. I mean there is some actual connection between that and some power. If you are elected there is accountability.
Mr. MacKay: That is an important point. There used to be accountability but also impact that it should not be a charade of power.
Senator Pearson: That is right.
Mr. MacKay: Just having somebody sit on a council without authority is tokenism that is not helpful.
Senator Pearson: Yes.
Mr. MacKay: In some ways it is a win-win situation because usually when you empower in those ways, they exceed your expectations.
Senator Pearson: Absolutely.
Mr. MacKay: When I was President of Mount Allison, the student environmental group performed an environmental audit of the university every year. The audit was effective and had a lot of impact because they were, as often is the case, way ahead of the administration and the teachers and so on in terms of knowing the environmental needs. Just as one example, every year they audited the recycling and issued a report card to the various segments of the university. Mount Allison has a good reputation that is based on the reputation of its students. The university departments take the report cards seriously. That is just one little example. The schools might employ similar democratic participation with the student body. Democratic participation education is exactly what we need to produce good citizens for tomorrow, I would say.
The Chairman: We used to have teachers stand in the shoes of the parents, in locus parentis and a lot of that has fallen away. We have taken away a lot of the authorities that teachers had and have created.
Going back to your point on search and seizure, are you saying that we do not understand the role of teachers in our schools?
In my training and as a judge we agreed that the closest comparison of a teacher was a parent. We felt that the duties and responsibilities of the teacher were equal to the parents. We have slowly eroded that authority without replacing it some ability for teachers to be in charge of the classroom. Am I correct saying in that?
Mr. MacKay: Yes, you are correct. It is a very big point, a very big and significant shift in the nature of the role of the teacher because their traditional role was in loco parentis. They were able to perform a search and seizure under the main assumption that the interests of the parent and child coincide. That is a bit of a hangover sentiment from the search cases, and the assumption that there is a difference between a teacher and a police officer making the search. The attitude has shifted and in almost all the legal cases the teacher is held to be an educational agent of the state. In certain areas they have the duties of a parent but that is not their primarily role and it is a much different setting from the sort of one room school where they were agents of the parents in the direct sense. That is no longer the case and the shift is not yet part of our law.
I think search is one of area where we should not always assume that the teacher and students' interests are the same side. That same teacher, who might be searching them, if they are a guidance counsellor, may have all kinds of confidential information from that student on the assumption that it will never go anywhere. In a legal sense, if they appear in a criminal proceeding, they may have to give all that information. There is no privilege on that. The very important thing about what role a teacher is playing is the delegated parent role. Sometimes they are in an educational state role. Sometimes they are in a police agent role. When the child was searched at school the teacher was acting as an agent of the police department. In that context the teacher, along with the RCMP agent in the room is not a friend that will help you out. It is very important to clarify the roles and there has been a shift.
The Chairman: If you take corporal punishment out of the Criminal Code, one of the arguments is that you would have to put something back for defences of necessity and other defences.
We had the Animal Rights Act in front of us and the justice department came and said that if we took out certain sections and changed them in the Criminal Code, the common law would still afford us the ability to use the defences. Many lawyers, including the Canadian Bar, came along and said they were not quite sure that would happen. They argued that you should leave the defence within the Criminal Code. What about the restraining need of teachers and parents in a situation where a child is out of control? Physical restrains might be necessary to protect the child, another child, or anyone else in that environment. You could end up in a position of being charged with assault to raise the defence of necessity and you would have to try to reach back into common law to find that defence. Is it alive; is it still viable? If you take out section 43, you should put something back for the caregivers who work with children. Do you agree?
Mr. MacKay: I agree with part of it. I do not understand why, if it is not replaced by statute, common law does not continue to exist. Common law exists until it is repealed by clearer statutory language. I would think they are still there but there is not quite the same comfort in having the somewhat less-clearly defined common law protections as clearly written out in the code protection. There are some sections, and I do not have them right at my fingertips, in the Criminal Code itself that would provide defences in some of those situations. For example, in hospital settings there are often cases where people have to be restrained in their own best interests and that does not normally produce prosecutions for assault. There is also the de minimus rule that is often put forward by advocates for repealing section 43. That is a matter of both police and prosecutorial discretion. They have some choice about what cases they bring, again not as comforting as having a solid defence.
In some of the information in the Foundation for Children and Youth case there was a strong suggestion that, if repealed, other things would fill the void.
In studies on the 17 European Union countries that repealed the section there has not been a big problem with the prosecution of parents and teachers. The cases are dealt with early on at the prosecutorial and police discretion level and winnowed out before they get to court. If the cases includes self-defence, other rules come in to avoid a rash of assaults. It is probably true in relation to teachers and parents, but particularly in relation to teachers that most teachers are not going to intervene in this way unless it is self-defence or protecting the safety of the rest of the class. I believe that the days of formalized corporal punishment, and the strap, are over in most places in Canada.
I do not think that repealing section 43 would result in a rash of prosecutions of teachers and parents. I think that within both the Criminal Code and the common law the defences are there.
The Chairman: I think it was teachers, parents and caregivers, who were working with difficult children.
Mr. MacKay: Yes, others. That is correct.
Senator Mercer: I think Professor MacKay may have answered my question because my concern is with the repeal of section 43. I am in favour of the repeal of the section but worry that it will leave our educators dangling without power. I was a tough kid to manage in the Halifax school system and there are many teachers still around who would tell you that. And without that, yes, and I am difficult here, too — without that threat of, or at least the knowledge that corporal punishment was there, I am concerned that teachers in particular, do not have that big stick. I do not mean it in a literal sense. I mean the threat of something to maintain the peace, order and safety in the classroom of both the teacher and others.
My civil libertarian side of me says we need to remove section 43, but I appreciate the practicality of a teacher operating in the system and I am worried about their protection.
Do you feel comfortable that there are other protections for educators?
Mr. MacKay: I understand that, having taught in schools and being a teacher for much of my life myself. I understand that and it is a bit like the balance between safe schools and free speech. There is always that balance between making sure it is a safe, and ordered learning environment on the one hand, but protecting rights on the other.
Here is a letter signed by Anne MacGillivray and others who have done a lot of writing on the repeal of section 43. The letter is addressed to the Legal and Constitutional Affairs committee that is dealing with the repeal. It says:
Where force must be used to protect, restrain or move a child other defences to assault apply. These include self-defence, Criminal Code sections 34 to 37; using force to prevent an offence, section 27; and defence of property, sections 38 to 42, and the common law defences of necessity, de minimus and implied consent to acts of nurture...
Then it cites a case in 2000 where the Ontario Court of Appeal said that there was a defence in a health setting to restraining people. It goes on to conclude:
...These are equally available to protect parents and teachers from unfair criminal sanctions.
Now that is not a total answer but that is illustration that is just a bit more specific and it was what I was searching for earlier. It is not just the common law defences but there are actually some Criminal Code defences that would apply in many cases. The nature one defence strikes me as particularly appropriate in both a health and educational context so I think there are other ways to do it and this is going to Senator Mercer's point, without being offensive to the civil liberties. One of the things I found hard about the majority decision in the Foundation for Children and Youth case was that they said it was not an offence to a child's dignity to be just about the only person in society who can be assaulted with impunity.
The Chairman: That stands for a child from the ages of two to 12 years.
Mr. MacKay: Well that is right, as they restricted it but section 43 does not so limit it.
The Chairman: No, but they restricted section 43 and their judgment on dignity concerned the ages of two to 12.
Mr. MacKay: That is correct and is written in as a judicial amendment to section 43 so you are right. I do not know why they did not at least say it was a violation of dignity under 15 years and then maybe save it under section 1 in order to promote order and to do other valuable things. To say there is no violation, I do not understand because assault violates most people's dignity.
The Chairman: We have not seen them reach to section 1 too often, nor parliamentarians, for that matter.
Senator Oliver: Professor MacKay, when we were in New Brunswick we were told that in November of 2004 you were engaged by the Department of Education to do a major review of inclusive education in New Brunswick. We are also told that one of the things that you would be recommending is a policy framework for inclusive education and more specifically, helping them with a definition of "exceptionality.''
Are you able to give us an indication where you are going with the new definition of "exceptionality''? We have had many questions regarding this definition in context with children suffering from autism.
Mr. MacKay: In that very interesting study there are two challenging definitional tasks. One is defining "inclusion'' and defining "exceptionality'' because section 12 of the New Brunswick Education Act refers to "exceptional students,'' a term that we often used for special needs or disabled children.
I should preface this by saying that I am still in the process of preparing the report and the hearings are nearly finished. However, we are all mindful of Justice Gomery these days, and I do not want to make any statements before all the evidence is collected. I will say that as an informed caveat. I think only two provinces actually use the term "exceptionality,'' New Brunswick and Ontario. Most provinces refer either to "disabled,'' "special needs'' and there is always the question of language. I think that is maybe an important starting point. "Exceptionality'' may be a term that is a bit problematic in that the act defines "exceptional students,'' but does not give a label for the rest. In fact, that is one of the challenges I put to most of my hearings. What do you call the non-exceptional students? Well that does not go very well. "The rest'' is not very good either.
I have not made any firm conclusion on this, but I certainly want to explore whether we should stick with the word "disabled'' that the convention and the Charter use. I know there are issues around that as well but that is one thing we are looking at. Whatever term we use, whether "exceptionality'' or "disabled,'' there is a growing list of people who need intervention.
One of the other things I have discovered in the hearings is that in the French edition they discuss students in "need of intervention.'' That terminology is a bit more neutral.
In some ways most of us need intervention, educational intervention at some point because we are all exceptional. We all have some aspects of difference. That is another sort of thing we are playing around with. I think we have to accept that in an inclusive society we are going to have a growing list of "exceptionalities,'' and "disabilities,'' whatever we call it.
I think the challenge is to define it in a way that is workable, leaving room for addition but also to maybe even more importantly, provide the resources to respond once you do define it. Autism is a good example. Autism or Autism Spectrum Syndrome has a whole range from very high achieving to not so high achieving. Our understanding of that syndrome is relatively new and we are just beginning to understand it. ADD has been around for a long time but we did not discuss it. We used to talk about kids who were problematic, full stop.
Now we have all kinds of labels for our children's behaviours. I do not have any final answer other than saying that one of the challenges is to come up, not only with the label, but with who should be included and perhaps equally important, who should decide whether people fit the categories. Who decides is always an important question and at the moment it is the superintendent, at least in theory, or they may delegate it down who decides whether a student fits the "exceptionality'' definition and therefore gets services. I think it is on the advice of experts but "expert'' is not defined. So where do the parents fit and so on? Almost as important as the definition and the label is who actually gets to decide it. This goes to participation and whether the parent is allowed input in the decision making process. The big question is how much of our education model should be medical? Should these be medical diagnoses or is it really more educational? I am attracted to intervention, because once you get a medical label you are left with the dilemma that it is helpful for educational purposes to get this label because you will get resources and support. However, for the rest of your life it is not helpful to have this label. Is there something we can do to get the resources without the label?
Senator Oliver: Without getting the scarlet letter.
Mr. MacKay: Exactly.
Senator Oliver: Senator Pearson has said that the UN is now working on another convention in relation to the disabled and I am just wondering if they are wrestling with definitions of what is "disabled''.
Mr. MacKay: I have not had a look at that yet. I have made a note of that. If you have any information, I would very much like to see it.
There is a very useful cross-Canada study by Gary Bunsch and Kevin Finnigan looking at definitions within special education and inclusion. They found, not surprisingly, that there is disagreement that people use the terms, "inclusion'' and "integration'' as the same while in fact the terms have very different meanings. I am interested to see that study because perhaps we can take some guidance from the international definition.
Senator Pearson: I know that Ontario has used the term "exceptionality'' because they encompass in that "exceptionally gifted children.'' There is a need to encompass that and the need of intervention sometimes may not fit that particular category.
In New Brunswick, there is a directive that teachers should not ask parents to ask their doctors to prescribe Ritalin. It is an interesting and challenging rights issue. We must find a answers to the questions on whose advice we should medicate our children and are we over-prescribing for the wrong reasons?
Mr. MacKay: You raise a very good point about the Ontario definition. Just to finish that one off, New Brunswick does not include the word "gifted'' in "exceptional,'' which is interesting.
Concerning the Ritalin question we did hear from Ombudsman Richard who I think was meeting with you in Saint John. That was certainly one of the things he talked about and we have heard from some others. We certainly have heard about the growing number of diagnosis of students with ADD and ADHD. I think the important question is who is making the diagnosis.
I do not have any medical information one way or the other to debate on this, but how much of that should be a doctor's view? Where is the role of the parents in it? Do parents have some say in whether or not their child should have Ritalin? This is the directive from the department has set out as to what role should parents or principals have in saying, you know, "We think your child should go on Ritalin. He would do a lot better.'' That is a tough question because again somewhat like the label, once you are on Ritalin then, you know, again I am not medical but there are debates on both sides. It is probably good for some people and it seems to help them to work effectively. On the other hand, what are some of the consequences and side effects of the drug?
I suppose I cannot answer the question and I do not know if Ombudsman Richard did, whether there is really over- prescribing because I do not know how many students there are with ADD where it is necessary or how effective it is as a response.
I suppose one of the things I would say, and we have heard this from a lot of witnesses, is that we should perhaps spend more time looking at alternatives before we have a medical answer. There other effective ways to respond to students with ADD other than medical responses.
I do not really have any answers. We have heard about it, not a huge amount, which does not mean it is not a big issue. I know it is a big issue for the ombudsman.
I am interested that New Brunswick does not have a child advocate. Many issues concerning education in New Brunswick go to either the ombudsman or the Human Rights Commission.
The Chairman: Mr. MacKay, as usual you have generated a lot of interest and given us a lot to think about. You have framed some of our questions in new ways, and given us some of the answers that I think we can incorporate into our study. Thank you for your paper and thank you for your presence today.
Dr. Douglas McMillan, Professor of Pediatrics, IWK Health Centre: Thank you very much, Madam Chair and members of the committee. Sitting on my left and providing the first team back-up is Jane Mealey who is Vice- President at the IWK Health Centre. I should indicate that we will be speaking on behalf of the IWK Health Centre as it relates to Dalhousie University, not just the injury program. Anne Cogdon is on my right and Ryan Thompson on my far right.
We are pleased to have an opportunity to contribute to your committee's examination of Canada's obligation under the United Nations Convention on the Rights of the Child and whether Canada's legislation, as it applies to children, meets our obligations under this convention.
As past President of the Canadian Paediatric Society, I would also like to indicate that Senator Landon Pearson and colleagues in the Canadian Senate are well-recognized by the Canadian Paediatric Society, the Canadian Association of Paediatric Health Centres, and other organizations for their activities on behalf of Canadian children and youth.
I would like to begin with a quote from Dr. Meharban Singh, former Head of Pediatrics at the All India Institute of Medical Sciences in New Delhi, India.
Children are the seeds and future of any nation. Their mothers are the soil which provides the nutrients for growth.
The well-being of children and youth is multi-faceted with many directly or indirectly involve health. World Health Day, April 7, 2005 provided an important message in four parts. Healthy mothers and children are the real wealth of societies. Too many mothers and children are suffering and dying each year. Millions of lives could be saved using the knowledge we have today. The challenge is to transform this knowledge into action.
I would suggest that a similar challenge exists in Canada and in order to make a difference, we must all join forces and act. Together we can do it. Each of us has a role to play on the global stage or in the Canadian setting.
As the committee is aware, Canada is a proud signatory to the United Nations Convention of the Rights of the Child, the Optional Protocol on the Convention of the Rights of the Child and the sale of children, child prostitution and child pornography and the Optional Protocol on the Convention of the Rights of the Child on the involvement of children in armed conflict. While we recognize that we have taken steps to improve the well-being of children in Canada and elsewhere in the world, our obligations at home and abroad present continuing challenges. In supporting the convention,
The child, by reason of his or her physical and mental immaturity, needs special safeguards and care and appropriate legal protection before and after birth.
We must not only be seen to contribute; we must achieve better results. Perhaps no country can fully meet article 4 on the Convention on the Rights of the Child:
To undertake all appropriate legislative and other administrative measures for the implementation of rights recognized in the present convention.
With regard to economic, social and cultural rights, state parties shall
undertake measures to the maximum extent of their available resources and where needed within the framework of international cooperation.
However, we would like to focus on seven areas where we believe that we can do better: mothers, injuries, violence and abuse, education, poverty including the poverty of opportunity, recreation, health services and supporting the UN Millennium Development Goals.
Today 1,400 women will die of pregnancy-related causes. As in another presentation, that is equivalent to four jumbo jets full of women crashing; 530,000 women per year. Today 30,000 children under the age of five will die and many more mothers and children suffer either short-term or long-term disabilities. The deaths include 4 million who die in the first month after birth and a million adolescents who die of violence, pregnancy-related and treatable illnesses.
In some areas of the world if a mother dies in childbirth, the baby has only a 50 per cent chance of reaching his or her fifth birthday. While many parts of the world struggle to have trained birth attendants at all deliveries, Canada is faced with a decreasing number of family physicians providing care during birth. Midwives are relatively few and nursing is facing their own human services crisis. Our most disadvantaged will likely continue to be our Aboriginal people, new immigrants, and youth.
In many parts of the world the lack of readily available water means that children, most often girls, travel to remote distances to collect the water, which often prohibits their attendance at school. This lack of education is associated with earlier pregnancies, shorter birth spacing, decreased earning power and increased infant mortality.
While our focus is on the obligation of Canada under the Convention of the Rights of the Child, we must remember that the determinants of well-being include psychosocial, environmental, economic, educational and cultural factors. This is as true in Canada as it is elsewhere in the world. We have responsibilities to mothers, children and youth both in Canada and on a global basis.
In the area of injuries, violence and abuse, injuries including poisoning count for almost one third of the deaths of children one to four years of age. Some of our societies are at even greater risk. The Canadian Council on Social Development Highlights the Progress of Canada's Children 2003 indicates that Aboriginal children are more likely to die from injuries. Violence is an increasing concern. One might well question whether article 17 (e) of the convention to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his health or her well-being is enough to protect our children and youth.
Do our injury prevention programs need expansion to the media where children are routinely exposed to violence?
Anger management programs may need greater implementation in our schools. Some current school regulations have children suspended from school until a mental health assessment report but it may take months to get an appointment for that assessment during which time the child is out of school, probably in contravention of article 28.
Violence, depression and low self-esteem are often contributing factors to suicide, a significant cause of death in youth as well as adults.
In British Columbia 40 per cent of gay, lesbian, bisexual, and transgender youth have dramatically low self-esteem and 46 per cent have attempted suicide at least once. We must be more effective in reaching out to the marginalized segment of society, especially our children and youth.
The Canadian Council on Social Development reports a survey of Aboriginal youth in Ontario that reveals that 61 per cent of female respondents and 35 per cent of males had experienced some form of sexual abuse. This reaches other elements of our society without regard for socio-economic status.
While Canada has prosecuted individuals engaged in sexual exploitation of children in other countries, as supported by the Optional Protocol on the Convention of the Rights of the Child on the sale of children, child prostitution and child pornography, there still remains much to be done at home.
Article 19 indicates
That state parties shall take all appropriate legislative, administrative, social and education measures to protect the child from all forms of physical or mental violence, injury or abuse or negligent treatment or exploitation including sexual abuse while in the care of parent(s), legal guardians(s), or any other person who has care of the child.
We overheard some brief discussion about bill 43 from the legal profession and I would suggest that the present legislation does not effectively protect the child from violence from parents and guardians. Evidence suggests that the child exposed to violence learns violence and this leads to a perpetuating cycle in future generations. Current legislative and administrative steps are not enough. More social and educational measures are required, perhaps expanding upon our programs that are initiated in some schools.
In the area of education, article 28 of the convention addresses the right to education. Although we have a system of universal education, 15 per cent of young Canadian men and 9 per cent of young women fail to complete high school. We must not only provide a system but also do so in a manner that optimizes utilization.
Article 23 indicates that states parties recognize that mentally or physically disabled children should enjoy a full and decent life in conditions that ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
Chronic conditions and disability affect more than 10 per cent of Canadian children, often interfering with their education. While we do better with physical disabilities, it is often difficult to get children into appropriate assessment and treatment programs, especially for mental health and learning disabilities. This has serious adverse effects on their education and future contributions to society and often represents a disconnect in the responsibility of the education and health sectors.
Throughout the world, there is poverty and it should also be remembered that we have poor in Canada. The 2002 Canadian Council Report on Canadian Children indicated that 18.5 per cent of Canadian children live in "poverty.'' Although this number is down from 21.3 per cent in 1993, it is higher than the 15.2 per cent incidence in 1989 when the Canadian House of Commons unanimously committed to eliminate child poverty by the year 2000.
The link of poverty with poor health, increased exposure to violence and decreased educational opportunities exists throughout the world, and in this area, we are seen to be doing less than our nation's resources indicate should be done. This is perhaps particularly true for our Aboriginal people and recent immigrants and families.
While our educational system has many positive impacts, schools are asked to do more as 63 per cent of children under the age of 15 in two parent families have both parents working full-time.
In other areas of the world a safe water source close to home may enhance educational opportunities. The solution for Canadian children is more complex. Many of us have had periods of financial limitations that may have even met the definition of `poverty.' That definition certainly applied to me while I was going to university. The difference is that we have hope and opportunity and it may well be that the perceived lack of opportunity contributes to the use of alcohol, tobacco and drugs as well as limiting education in some who cannot see the hope for the future. We must find a way to more effectively reach those in need to provide opportunities to become contributing members of society.
Article 31 addresses the right of the child to rest and leisure, to engage in play and recreational activities. Unfortunately, Canadian children are becoming less engaged in the latter. A recent report indicates that in grade 11 students, only approximately 10 per cent exercise an hour a day throughout the week. This was something that was unheard of when I was going to school as we had lots of opportunity with parks, with schoolyards and with organized program activities.
While in some areas stunting of growth and underweight are major problems Canadian children are becoming increasingly overweight. This may be partly related to children spending more time in front of a screen as well as poor nutritional habits. Poor nutritional habits also have a strong link with limited financial resources. Canada's national action plan, A Canada Fit for Children when implemented, could significantly contribute to the resolution of this problem. It might also be expected that the provision of alternate activities and outlets may decrease some other adverse behaviours in children and youth.
Elsewhere in the world structured educational programs and refugee camps are endeavouring to address the adverse effects of war on children and youth. In Canada there needs to be ongoing consideration for physical well-being of our children, youth and adults.
Provision of health services in Canada is generally good, although there are significant problems with access in some areas. As costs of care continue to increase we must focus efforts on prevention and health promotion.
Although article 33 does not refer to tobacco and alcohol, clearly our children need protection against the pressures for use that currently exist.
Article 24 recognizes the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. As healthcare providers, we recognize the importance of prevention. New immunizations for pneumococcus, meningococcus, and chicken pox recommended by the National Advisory Committee on Immunization, the Canadian Paediatric Society were variably implemented across Canada. As the responsibility was provincial, implementation of a nationally recognized standard resulted in children across Canada getting unequal access to health prevention while some provinces paid for this new immunization and others required parental payment.
In Canada we must find a better way to address provincial disparities and care, especially for children and youth. On a global basis, measles, a preventable disease with immunization, is responsible for the death of 400,000 children each year. We must find a better way for health programs, especially those related to prevention, to actually reach those in need. This will need to consider the many barriers and enhancers which exist in all societies.
In the global arena, Canada has endorsed the following UN Millennium Development Goals. We endorsed the eradication of extreme poverty and hunger; and the achievement of universal primary education. We endorse promoting gender equality, the empowerment of women and the reduction of child mortality under age five by two- thirds by 2015. We endorse improving maternal health with a three-quarter reduction in maternal mortality by 2015. We endorse the combat of HIV/AIDS, malaria and other diseases and endorse the measures to ensure environmental sustainability and develop a global partnership for development. Many Canadians are urging greater action in this area.
As late as three days ago, I received information from the Canadian Coalition for Global Health Research that we urged the Group of Eight meeting in July 2005 to strengthen national health systems, support and enlarge health worker capacity, overcome macroeconomic challenges, address health worker needs in high-income countries, support international organization and ensure soundness of donor programs. While Canada should increase its contributions to the 0.7 per cent of Gross National Product promised in the days of Prime Minister Lester B. Pearson, it is simply not enough to provide funds. Our contributions must be measured not by input, such as dollars, but by output, well-being. Canadians should continue to insist that programs at home and abroad be based on locally-recognizable and supported needs, and be able to be evaluated to aid replication or elimination and be sustainable for the future.
In summary, Canada has done much to meet its obligations under the UN Convention on the Rights of the Child. However, there remains much to do to ensure that our programs reach those in need and that they have the desired effects. We must ensure that these programs are sustainable for the future.
The United Nations Children's Fund published an extensive report, The State of the World's Children, 2002. While supporting such efforts, we should consider whether a similar document, a report card, should be regularly published for Canadian children and youth.
I would like to finish on a personal note. I believe that Canada as a nation would do well following the advice once given to me by my father, paraphrased as, "We must always forge ahead ourselves and help others along with us.'' Thank you for the opportunity to make a small contribution to this important process.
Senator Pearson: I thank you very much for your presentation and for the reminders of some of the issues that confront us in Canada as well as around the world.
We are not going to deal with around the world today. We are just going to try to focus on our more challenging problems here at home. The Canadian Paediatric Society, of which you were the past president, has been doing increasingly good work in your position papers and so on, very, very helpful stuff.
We are interested when children talk to us and say what they perceive as their problems and issues in the health area. I have already raised this before but we did hear from a young person in New Brunswick who was very much concerned with some of the prescription drug abuses, oxytocin and things of that sort and we have also heard from young people who are concerned about sexually-transmitted diseases and issues around lack of education and so on about their emerging sexuality and the implications of their activity.
Dr. McMillan: I will make an initial comment and then maybe Anne and Jane could add in further. While on the CPS Board I had the opportunity to sit on the adolescent health committee which is quite different from my usual taking care of newborn babies. I became increasingly aware of how the youth are as culturally from children and from adults as many ethnic groups. If we try to have one model that fits all or we divide things into children and adults, the youth get left somewhere in the middle. Although there is a universal health system, it does not effectively reach many of the youth the same way as it does not reach some other areas of our community. I think that we have the knowledge. I think that we need to do better at actually reaching the people on the subjects of drugs, alcohol, sexually transmitted diseases staying in school, or preparing for parenting. I think these are all issues that we need to find a better way of reaching the involved people.
Ms. Anne Cogdon, Director for Primary Health, IWC Health Centre: Yes, one of the things that we have tried to deal at the Capital Health District is to address some of the issues you have talked about related to youth health. To that end, we have established youth health centres in every one of our high schools. We have a public health nurse who runs a centre in each of the high schools. The nurse also visits the junior high school that is part of the high school. The youth health centres have been operating for two years.
The most common reason for youth visits is to discuss relationship-related issues. They tell us that the health centres enable them to access help concerning stress and relationships with their parents and their peers. They have concerns about intimate relationships and issues related to gender identity sexuality and drug and tobacco use.
Although it is a wonderful resource, it is not enough. We see the need to provide the serve to children in grade 8. They do well in grade 7 and then something happens between grade 7 and 8 in that summer and all sorts of indicators follow at that point in time. Their behavioural issues come to the fore, identity issues, and those kinds of things. We need a larger resource for children in that junior high level.
As a result of our success with the teen health centres there is an indication that the program will become part of a province wide initiative. Again, that is a resource issue.
In our area and in Dartmouth the youth, grades 4-12 have participated in a youth survey developed by the Search Institute. A number of school districts across Canada have used this survey, which measures children's developmental assets.
There are 40 developmental assets and the survey indicates that as the children age their assets drop. Children start out in grades 4-6 with 25 assets out of a possible 40 and by the time they get to grades 7-12 they have 16 assets. Assets such as decision-making, feeling a sense of value in the community, and feeling they have caring, adult role models, all drop as children age.
We have a lot of work to do with this information collected from the youth.
Ms. Jane Mealey, Vice-President, Children's Health, IWK Health Centre: We also have a large group of youth with disabilities and those young people have the same issues as — I will not call them "normal'' — youth without disabilities.
Our challenge is to help those youth integrate into their social environment while coping with disabilities and often with the challenge of poverty. We have not solved those problems at either the provincial or the federal level.
Senator Pearson: Young people use the school clinics more frequently than centres that are more difficult to access. I am pleased to hear about these clinics because I think young people think of the public health system in a positive way.
I am aware of your assets program in terms of learning about health behaviours. The McCreary Centre Society has a similar system in British Columbia. It is a tool used with young people and often organized by young people themselves to get their needs answered. I think it is a fairly accurate reflection of where kids think they are in their environment.
I can remember Dr. Graham Chance from the Canadian Institute of Child Health, talking about how mental health issues really hit in adolescence. I can confirm his statement having raised five adolescents myself.
I would like you to say some more about the capacity or lack thereof in the system to respond to the mental health needs of children and adolescents.
Ms. Mealey: That is a major challenge for us in Nova Scotia. Over the years, we have conducted numerous reports on mental health, and even with increasing resource to support mental health, we have two and one half year waiting lists for those youth not critically ill. Children and youth that have attempted suicide or created major problems at home or in their environment receive immediate assistance, but otherwise the wait is too long for youth with mental health issues.
We need to have better access for youth children and families to assessment. We look to the school to observe the child's ability to function and determine whether their problem is a behavioural disorder or if it is mental illness.
As Doug said, the school often suspends the child for bad behaviour and then he or she has to wait for up to two and a half years to get assessment. This wait time is too long.
We are making progress but it is a resource issue in terms of financial resources to support what appears to be an ever-growing need. We find that adults suffer from the same problems in accessing mental health care. They have difficulty finding qualified professional psychologists, social workers and psychologists. These professionals make up a team of mental health care service providers. We do not have enough child psychiatrists in the country. They have a unique skill set and we do not produce enough of them to fill our mental health needs.
Ms. Cogdon: I totally agree. One of the responsibilities that I have within my job is to do community consultations. We have a system in Nova Scotia where we have community health boards and their function is to relate to the community, to be the eyes, ears and voice of the community and bring that information into the health system.
Access to mental health services is a concern for families in need of help and information for children and youth with mental health issues. Parents are in need of support to deal with their child's problems. They need advice on how to be the best possible parent in their circumstances.
Last fall, we conducted a telephone survey of 1,400 people across our district. We asked people to reflect on the major health issues related to children. The survey indicates that the foremost issue for children is a stable and supportive family. Then we asked them to reflect on what action we should take. Sixty per cent answered that they need help with parenting skills.
We have to help the child and equally important, we have to help the parents of a child with mental health issues. Parents want to be the best support possible for their children.
Senator Pearson: I believe your findings match the results from the Invest in Kids survey conducted in Toronto. The results of that survey indicate that parents believe that their job as parents is the most important role that they play in their lives. It also indicates that they do not know how to do properly and they do not feel valued for their work with their children.
Senator Mercer: My reading and studies show that one of the most significant problems is that young parents thrust into parenthood are unsure of their parenting abilities. As I always say, children do not come with instructions.
I was 25 years of age when I became a parent and it was a scary experience. Image the fear parenthood would bring to a 16 or 18 year old.
This issues goes to preventative medicine and preventative care. Have you been able to track the effectiveness of teaching parenting skills? Are there cases where you have had effective parenting skills training and then seen a decline in certain problems that you might have anticipated?
Ms. Cogdon: Unfortunately, we do not have a good system of parenting programs. We have excellence in pockets. I think that is our problem. I think we need a broader reach. Parents require education and other supports to be the best parents they can be. Parents need adequate housing and finances to shelter and feed their children in a healthy way. All of these supports contribute to the well-being of the child and assist parents in their role of raising their children.
I cannot recall the research on the effectiveness of parenting skills but I am sure it is out there. The literature points to the need to give parents those tools and to do it from their perspective. We realize that our program is not suitable for everyone. Programs must relate to the socio-economic level and their specific needs.
We have an interesting project underway Dartmouth. The family resource centre in that city performs a great service in reaching out to parents and offers a comprehensive approach to new parents. The centre welcomes parents into an inviting atmosphere and provides them with supports to raise their children in the best possible way.
The centre provides public health services and heath and speech and language therapists. It offers reading programs and links parents with the food bank services. Therefore, it has to be a very comprehensive approach.
Dr. McMillan: The Read to Me program at the IWK Health Centre encourage child-parent interaction while educating the child. Parents receive books and instructions on reading bedtime stories. This program is beneficial to both parent and child.
As to the issue of newborn children, we need more studies on their post-natal environment. I really think that from the research standpoint and indeed, for all the programs that we have, that we should have an evaluation to know what works and what does not work.
Senator Mercer: One of the issues with young parents, particularly very young parents is self-esteem and the belief they can tackle the big bad world and successfully raise a child in it. It is difficult to teach self-esteem. I see that as significant part of the equation in trying to solve some of those health and social problems.
Dr. Ryan Thompson, MHSA Resident, IWK Health Centre: I would like to comment regarding the parenting skills, as I am a young parent myself. It is not necessarily that the skills are not there. Yes, there definitely can be improvement. However the problem is the time I spend with my child. In many homes both parents work and they shuttle their kids to daycare and they see their kids for maybe two or three hours a day, and maybe on weekends depending on their employment situation.
The trouble is not enough time to make an impact on your child. It gets back to the self-esteem part. If you are not around your children, you cannot be that role model and provide that role model. It is difficult for parents to be role models when they are out working to pay for the housing and food. They are busy doing other things. It is difficult to make an impression when you are not with the child.
Senator Oliver: Part of my question has been answered but I am going to put it anyway. First, thank you for your presentations that dealt with both national and international issues.
Dr. McMillan's c.v. indicates experience in educational programs for healthcare professionals in places like India, China, Bangladesh, Laos, Philippines, Indonesia, Saudi Arabia and so on.
We have been in Sweden and Switzerland and in a number of provinces hearing from witnesses and one of the things that I would like to hear from the four of you is about the UN Covenant on the Rights of the Child in Nova Scotia and, in particular, at the Isaak Walton Killam Hospital.
What type of education and training is there for staff on the rights of the children? Do most people understand what these rights are and, if not, what measures are you taking to help the staff understand children's rights?
What new things would you recommend to this committee that we take with us as ways to implement the various rights of the child insofar as they relate to healthcare issues?
Ms. Mealey: On a day-to-day basis we probably do not educate and remind staff of the rights of the children based on the UN Convention on the Rights of the Child. We do have that information available and posted. We include it in our philosophy of care. We make sure our staff has the proper credentials. Our general philosophy include the covenant in our family-centered facility. We have a child abuse registry. We talk about the rights of children and youth and parents to be involved in their care. We have done work around the rights of children in hospital and healthcare settings. Our family-centered care literature ties very nicely into the rights of children and the rights of youth.
Our overall approach is embedded in the rights of children, youth and the family. The IWK is a very strong family- centered, family-focused environment that strives to ensure that children and families are an integral part of their care. They are integral in their decision making. We have just, for example, revised and implemented our policy on consent to treatment that engages and involves our adolescents in making those decisions and they can consent or refuse to consent. Senators are aware that here in Nova Scotia there is not a legal age of consent.
Senator Oliver: What are the youngest ages of participation?
Ms. Mealey: Children from the age of eight, nine and 10 are always involved in the discussions. We feel that they are capable of telling us what they want by that age. Obviously, when we are dealing with children with cancer and cardiac disease, there is a lot of parent involvement. However, the 15 year-old adolescent faced with a transplant who understands what that heart transplant means to him, has the right to say, "This is not how I want my life to go forward.'' In that situation we help the youth in his decision-making process. It is a very challenging area but our policy in particular gives us the opportunity to ensure that children are actively engaged in that dialog, and the same applies with engaging our families in making decisions around their children.
Senator Oliver: I am familiar with some of the work that Dr. John Anderson and Dr. Reese did in that capacity.
Ms. Mealey: Yes.
Dr. McMillan: I will comment that we provide care to the best of our ability. However, having read the Convention of the Rights of the Child, I realize that it is a good idea to reread the document. We are probably not aware of all the issues on the Convention of the Rights of the Child. Indeed, as I started to reread the document an enormous number of issues came to my attention. I refer to our immigration policy, which may separate families and a child's right to education. All these are in balance and I think that as a healthcare professionals we would all do better to examine the covenant in more detail. I am going to make this a challenge. I think we could all do better in that regard.
Ms. Mealey: As we think beyond the walls of the IWK and we think about our issues with our young people and access to mental health services, we need to go back and think about the rights of the child and the young person to access care and proper nutrition. We need to tie those needs back into our local, provincial and public policies.
I think the IWK has a huge role in advocating and using this as a source document as we look to policy development.
Ms. Cogdon: Jane just made me think about something which is around the whole issue of food security. We have provincial numbers indicating that a minimum wage family of four or a social assistance family of four cannot afford to buy a healthy food basked as identified by Canada's Nutritious Food Basket which, in our province costs $572.90.
The numbers take into consideration the cost of shelter and participation but do not include recreation medication or meaningful participation in the community.
A two-parent family with two children earning minimum wage for one parent and part-time minimum wage for the other parent ends up minus $292 every month when all expenses are included in the formula.
A two-parent family with two children on income assistance is minus $277 every month. If you are a single parent family with two children on minimum wage, you are below $392 every month. If you are a lone parent family with two children on income assistance, you are below by $153 every month.
You can imagine the stress that brings to a family and all the other things that come with that stress.
The Chairman: I think we have run out of time but I want to thank you for your presentations and echo what Senator Oliver said that I am particularly pleased that you put Canada in an international context. Not only does it point out the severe problems we have around the world with children, it points out that in relative terms we have to do a lot better in Canada. The poverty statistics are particularly disturbing although the numbers you are using are probably more optimistic than the recent figures. I think Canadians a lot to think about in terms of feeding our children properly.
I want to commend your centre for using the rights-based approach and the convention and I strongly suspect that we have many good practitioners across this country who work for the best interests of children. However, the convention talks about the child's rights as opposed to what others believe is in their best interests and so I think that emphasis may be the key to triggering some of the success stories.
I was rather touched by hearing you talk about involving a child in making decisions about transplants, et cetera. In the past, when a child had a problem and said "no'' to the transplant and if the parent said "no,'' we would call welfare services. I do not think we would have had the consent discussion that you are talking about so perhaps we are starting to make inroads into the intent of the convention.
We thank you for being supportive and hopefully our report will spur others and be of some benefit to all of you. So, we thank you for coming.
Ms. Mealey: I was struck by your conversation with Mr. MacKay and the subject of Ritalin and schoolchildren. The use of Ritalin is an easy answer to a complex question; it is a quick fix.
We had some major reports by Mr. Romanow and Senator Kirby looking at the issues surrounding access to services and wait lists. It is interesting to note that access to diagnostic imaging services, access to hip replacements, access to cardiac surgery, access to public health homecare are related to adult issues. What we do not see are the issues surrounding children's access to assessment.
We have children in school who have to be put on Ritalin because they are waiting for two and a half or three years to get a pre-school assessment.
I would hate to say that it is because children do not vote but children's issues are not noticed. There is a huge adult voice around, "I am waiting two years to get my hip replaced.''
Only recently are we hearing the voice of children with autism. We know that across our country, parents are dealing with huge burdens with these children who have huge problems. We have to find a way to look at the problems associated with our children, because as Doug has said, they are our future and even children with disabilities are our future.
I encourage the committee to look at those problems in the context of the covenant.
Dr. McMillan: As a clinician I see an opportunity to better use my clinical skills and not rely on the technology. As a program developer, I see the impact and the influence of economic, social, environmental and other aspects of health that are magnified in other areas of the world, but are just as relevant here in Canada.
The Chairman: I appreciate it and I appreciate the last comments. Our committee has many more hearings but because the health issue is such a timely one at this point, we may have to consider doing something rather quickly to ensure that this health debate includes the children and particularly the assessment to which you referred.
Senator Mercer and I sit on the legal and constitutional committee and we see children who find themselves in court because we have failed to deal with their mental health issues when they were young.
Perhaps we need to do include ourselves in the health debate now and not wait until our report is finalized. We thank your for your time and your opinions.
The committee adjourned.