WHO’S IN CHARGE HERE?
EFFECTIVE IMPLEMENTATION OF
Interim Report of the Standing Senate Committee on Human Rights
Nineteenth Report
Chair: The Honourable Raynell Andreychuk
Deputy Chair: The Honourable Landon Pearson
November 2005
MEMBERSHIP
The Honourable Raynell Andreychuk, Chair
The Honourable Landon
Pearson, Deputy Chair
and
The Honourable Senators:
*Jack Austin, P.C. (or
William Rompkey, P.C.)
George Baker, P.C.
Sharon Carstairs, P.C.
Marisa Ferretti Barth
Marjory LeBreton
*Noël A. Kinsella (or
Terrance R. Stratton)
Rose-Marie
Losier-Cool
Donald H.
Oliver, Q.C.
Vivienne
Poy
*Ex-officio members
In addition, the Honourable Senators Maria Chaput, Ione Christensen, Ethel M. Cochrane, Roméo Dallaire, Elizabeth Hubley, Laurier LaPierre, Terry Mercer, Jim Munson, Lucie Pépin, Marie-P. Poulin (Charette) and Nancy Ruth were members of the Committee at various times during this study or participated in its work.
Staff from the Parliamentary Information and Research Service of the Library of Parliament:
Laura Barnett, Analyst
Line Gravel
Clerk of the Committee
ORDER OF REFERENCE
Extract from the Journals of the Senate, Wednesday, November 3, 2004:
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator LeBreton:
That the Standing Senate Committee on Human Rights be authorized to examine and report upon Canada’s international obligations in regard to the rights and freedoms of children.
In particular, the Committee shall be authorized to examine:
Our obligations under the United Nations Convention on the Rights of the Child; and
Whether
That the Committee present its final report to the Senate no later than March 22, 2005, and that the Committee retain until April 30, 2005 all powers necessary to publicize its findings.
The question being put on the motion, it was adopted.
Extract from the Journals of the Senate, Wednesday, February 23, 2005:
…that the date of presenting its final report be extended from March 22, 2005 to March 31, 2006 and that the Committee retain until April 30, 2006 all powers necessary to publicize its findings.
The question being put on the motion, it was adopted.
Paul Bélisle
Clerk of the Senate
This Study:3
Application of the Convention in Canada:3
Problems in the Incorporation and Implementation of the Convention:4
The Committee’s Suggestions for Reform:5
CHAPTER ONE – RATIONALE AND ROLE OF THE COMMITTEE.. 8
B. THE MANDATE.. 9
1. Examining Canada’s Role with Respect to Human Rights and the Convention. 9
2. The Critical Importance of Focusing on Children’s Rights. 10C. THIS REPORT AND THE COMMITTEE’S WORK.. 17
1. Fact Finding and an In-Depth Examination of the Canadian Context18
2. This Interim Report20
A. HISTORY OF CHILDREN’S RIGHTS IN CANADA.. 21
1. Evolution of Approaches to Children in History. 21
2. Evolution of Approaches to Children in Canadian History. 22
3. The History of Child Protection and Child Welfare in Canada. 23
4. Children’s Rights in Child Protection and Child Welfare Laws. 25B. HISTORY OF THE CONVENTION ON THE RIGHTS OF THE CHILD.. 26
1. The Origins of Children’s Rights in International Law.. 26
2. The Creation of the Convention on the Rights of the Child. 27
3. The Participation of Non-Governmental Organizations. 29
4. Optional Protocols to the Convention on the Rights of the Child. 30
5. The Committee on the Rights of the Child. 31
6. The Unique Nature of the Convention on the Rights of the Child. 32
7. Canada and the Convention on the Rights of the Child. 33
CHAPTER THREE – INTERNATIONAL TREATIES IN DOMESTIC LAW:35
THE IMPLEMENTATION PROCESS. 35
CHAPTER FOUR – IMPLEMENTING THE CONVENTION ON THE RIGHTS OF THE CHILD 43
A. IMPLEMENTING THE CONVENTION.. 43
1. Implementation and Application. 43
2. Statutory and Judicial Interpretation. 45
3. Reservations. 47B. ENFORCEMENT MECHANISM – REPORTING AND FOLLOW-UP WITH THE UN COMMITTEE 50
1. Role and Mandate of the Continuing Committee of Officials on Human Rights. 50
2. Adequacy of the Reporting and Follow-Up Process in Canada. 51C. COMPLEXITIES OF IMPLEMENTATION.. 56
1. Canada’s Federal Nature. 56
2. Lack of Awareness Concerning the Convention. 65
CHAPTER FIVE – MECHANISMS FOR CHANGE.. 71
B. IMPLEMENTING INTERNATIONAL HUMAN RIGHTS OBLIGATIONS IN CANADA – A TEMPLATE FOR RATIFICATION AND INCORPORATION.. 71
1. The Treaty Negotiation Process. 72
2. Signature and Ratification. 74
3. Post Ratification – Ensuring Effective Implementation of Canada’s International Treaty Obligations. 78
4. The Committee’s Comments. 81C. IMPLEMENTING THE CONVENTION ON THE RIGHTS OF THE CHILD.. 82
1. Children’s Commissioner84
2. Federal Interdepartmental Implementation Working Group for Children. 96
3. Strengthening the Voluntary Sector104
4. Broader Issues of Funding. 106
CHAPTER SIX – FUTURE PLANS: THE FINAL REPORT. 109
E. SEXUALLY EXPLOITED CHILDREN.. 111
APPENDIX A: List of Witnesses. 115
APPENDIX B: Convention on the Rights of the Child. 127
APPENDIX C: Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 147
APPENDIX D: Optional Protocol on the Involvement of Children in Armed Conflict156
APPENDIX E: 2003 Concluding Observations of the Committee on the Rights of the Child 161
APPENDIX F: A Canada Fit for Children: Canada’s Plan of Action. 175
APPENDIX G: CIDA Child Friendly Version of the Convention. 210
CHAIR’S FOREWORD
In
November 2004, when the Committee embarked on its study of
The
Committee hopes that its own transformation during this study towards support
for real compliance with the rights of children can be expressed, understood
and replicated throughout
In reviewing the Convention on the Rights of the Child, the Committee analyzed the international human rights treaty process and is proposing that, as Canada has fallen behind other countries in meeting today’s democratic expectations, a new negotiating and implementation process is desirable.
Having
completed this first stage of our study, I would like to thank the members of
this Committee for the enthusiasm and dedication that each brought to the Committee
table. Senators approached the issues
through their own area of expertise and life experience, emphasizing their
wholehearted commitment to the full respect and effective implementation of
children’s rights in
In particular, I would like to underscore the role of the Honourable Senator Landon Pearson (who will be retiring from the Senate this month), whose personal and professional life has been a testimony to real respect and caring for children. Throughout her career, Senator Pearson has proven her tenacity and dedication to children’s issues, making significant contributions to children’s rights at the public, political, and Senatorial levels.
Finally,
I would like to thank the staffs from both the Senate and the Library of
Parliament who were involved in this study.
In this regard, I would like to give special recognition and
appreciation to Dr. Line Gravel, Clerk of the Committee, Laura Barnett, the
Committee’s Researcher, and Kim Chao, who provided assistance for this Interim
Report. I would also like to thank the
numerous witnesses who appeared before this Committee, both in
This
Interim Report is dedicated to
EXECUTIVE SUMMARY
This Study:
·
The Standing Senate Committee
on Human Rights was authorized by the Senate to examine and report upon
· One of the primary aims of this study is to look at the UN Convention on the Rights of the Child, and analyze the obstacles to the protection of children’s rights. The Committee examined whether Canadian policy and legislation reflect the provisions of international human rights instruments, and whether this country is in compliance with its international obligations. The Committee has also looked at the role of Parliament within this framework.
·
·
It is critical that
Application of the Convention in Canada
·
In
·
The Convention
on the Rights of the Child is
currently deemed to be implemented by means of the Canadian Charter of Rights and Freedoms, federal and provincial
human rights legislation, and other federal and provincial legislation
pertaining to matters addressed in the Convention. In essence, this is a policy-based approach
to
·
With
respect to
Problems in the Incorporation and Implementation of
the Convention:
·
One
of the key concerns expressed by witnesses is the federal government’s unwillingness
to directly incorporate international human rights treaties; however, the
government has an obligation to make best efforts to comply with
international treaties domestically through domestic implementation, no matter
what jurisdictional hurdles are entrenched in the Constitution.
·
The
Committee has heard that the Continuing Committee is not an efficient mechanism
for ensuring coordination among jurisdictions or with the various treaty bodies
because of its limited mandate. In
addition, current reporting and dissemination processes are too complex, and concerns have been expressed
about the lack of transparency and lack of real public or Parliamentary input
in the reporting and follow-up process, as well as the lack of public
dissemination of the UN Committee’s Concluding Observations.
·
From
its hearings and the UN Committee’s Concluding Observations, the Committee
learned that due to Canada’s federal nature, the vast array of laws, as well as
the differing interpretations of or approaches to them in each province and
territory mean that Canada lacks uniform national standards in a number of key
areas with direct impact on children’s rights and that the institutions
established to protect children’s rights in each province also perform
significantly different functions.
· The Committee noted a lack of awareness in government and among the children and the general public about the Convention and the rights enshrined in it. In government, even among those dedicated to protecting children’s rights, knowledge of the Convention is spotty at best.
The Committee’s Suggestions for Reform:
·
The Committee recommends that
the federal government develop a more effective means of incorporating and
implementing its international human rights obligations, both before and after
ratification of an international instrument.
The Continuing Committee should be informed as soon as human rights
treaty negotiations begin at the international level in order to disseminate an
explanatory report setting out the goals and consequences of the treaty in
question, and to engage in an enhanced consultation process with all
stakeholders. Ratification of any
international human rights instrument should be accompanied by enabling
legislation in which the federal government considers itself legally bound by
its international human rights commitments.
This could take the form of tabling the treaty itself in Parliament,
accompanied by a Declaration that the federal government has reviewed all
relevant legislation and assures Parliament that
·
The Committee recommends that Parliament establish
a Children’s Commissioner to monitor implementation of the Convention and
protection of children’s rights in
·
The Committee recommends that an
interdepartmental implementation working group for children’s rights be
established within the federal government.
The role of this working group would be to undertake review of all
existing and proposed legislation using a child-based analysis; to undertake
ongoing consultations with provinces, territories, and other stakeholders
concerning implementation of children’s rights; to prepare the federal portion
of Canada’s country report to the UN Committee; and to prepare the federal
government’s follow-up report to the UN Committee. The Committee further suggests that this
working group focus on awareness raising, and developing a comprehensive
national education strategy about children’s rights.
·
The federal government should work with the NGO
community to develop the mechanisms and funding necessary to foster an
effectively functional and cohesive voluntary sector for the protection of
children’s rights in
·
Finally, the Committee suggests that the federal
government provide adequate funding for effective implementation of
SUMMARY OF RECOMMENDATIONS
RECOMMENDATION
1 – Implementing International Human
Rights Obligations in
The federal government – with the provinces, territories, Parliamentarians, and interested stakeholders – shall establish a more effective means of negotiating, incorporating and implementing its international human rights obligations. The Committee also recommends that ratification of any international human rights instruments be accompanied by enabling legislation in which the federal government considers itself legally bound by its international human rights commitments.
RECOMMENDATION 2 – Compliance with the Convention on the Rights of the Child
The federal government shall consider itself bound, with an obligation to comply fully with the Convention on the Rights of the Child.
RECOMMENDATION 3 – Children’s Commissioner
Parliament
shall enact legislation to establish an independent Children’s Commissioner to
monitor implementation of the Convention
on the Rights of the Child, and protection of children’s rights in
RECOMMENDATION 4 – Federal Interdepartmental Implementation Working Group for Children
An interdepartmental implementation working group for children’s rights shall be established in order to coordinate activities, policies, and laws for children’s rights issues.
CHAPTER ONE – RATIONALE AND ROLE OF THE COMMITTEE
A. INTRODUCTION
On
The Committee undertook a study of the impact of international children’s rights instruments on Canadian law, since there have been very few comprehensive studies done on this issue. The Committee reviewed, and will continue to examine carefully, Canada’s international obligations with respect to children’s rights and freedoms as a case study reflecting the broader implications of ensuring that domestic legislation complies with Canada’s international human rights obligations, and in keeping with a broader mandate that began with this Committee’s first report, Promises to Keep: Implementing Canada’s Human Rights Obligations.[1]
One of the primary aims of this study is to evaluate the UN Convention on the Rights of the Child[2] and other key instruments that protect children’s rights and freedoms, as well as to examine the obstacles to such protection. The Committee has examined whether Canadian policy and legislation reflect the provisions of these international human rights instruments and whether they are in compliance with international obligations in the field. The Committee has also looked at the role of Parliament within this framework.
While
the Committee originally received a mandate to report back to Parliament on
this issue by March 22, 2005, it quickly realized that a more exhaustive study
into children’s rights, based on a broader mandate was called for. As a result, the deadline for presentation of
its final Report has been extended to March 31, 2006. This broadened study seeks to answer the
following questions: Is Canada
implementing the Convention on the
Rights of the Child in
domestic law and policy, and if so, how?
Are society and the federal government responding to the challenges
confronting today’s children? This
Interim Report underlines the immediate need to ensure strong protection of
children’s rights and well-being in
B. THE MANDATE
1. Examining Canada
As
was noted in Promises to Keep,
Witnesses
such as Martha Mackinnon of Justice for Children and Youth emphasized that
As
Canada was seen as such a strong proponent of children’s rights in the
international arena in the early stages (noted by Frans Roselaars, Director of
the Infocus Programme on the Elimination of the Worst Forms of Child Labour at
the International Labour Office in Geneva), it is critical that Canada continue
to be a world leader with respect to the implementation of the Convention. As stated by Minister of Health, Ujjal
Dosanjh, “we cannot rest on our laurels.”[6]
It is important to note that
This is something on the international stage to which
In
fact, some witnesses have stated that
I am of the opinion
that
2. The Critical Importance of Focusing on Children’s Rights
These are the citizens of today, not of tomorrow.[10]
In attempting to highlight the necessity of addressing children’s rights, the Committee is fully aware that the world may have grown weary of the phrase “our children are our future.” While the statement remains true, witnesses have emphasized that the government, Parliament, and civil society must move beyond that cliché and recognize that children are citizens today. Only in understanding this can we begin to foster a true culture of rights and responsibility in our society. Clarifying the rights-based perspective and guaranteeing its application in the Canadian context is crucial to ensuring a fulfilled and meaningful maturation of rights.
The Committee heard from witnesses that the rights-based perspective – which is embedded in the Convention on the Rights of the Child and modern international human rights law – emphasizes the need to focus on children as individuals with their own set of rights. The idea is that children are not merely objects of concern to be protected, but are also to be recognized as persons in their own right. As stated by Justice Jean-Pierre Rosenczveig, President of the Board of Directors of the International Bureau for Children’s Rights, the Convention on the Rights of the Child
is deliberately oriented towards the 21st century in its recognition of the child as a person endowed with a heart and feelings, possessing rights, and not just as a small, fragile being who has to be defended against others and against himself or herself.[11]
Viewing children’s rights within this framework means that children are afforded protection beyond a basic survival or needs-level, thus facilitating the creation of a sustainable environment in which such rights can be protected in the longer term.[12] The rights-based approach “means describing situations not in terms of human needs, or areas of development, but in terms of the obligation to respond to the rights of individuals. This empowers people to demand justice as a right, not as a charity.”[13] As stated by the UN Committee on the Rights of the Child, “Implementation of the human rights of children must not be seen as a charitable process, bestowing favours on children.”[14] Ultimately, charity does not allow individuals to achieve their full potential because it tends to treat people as objects, rather than as active participants in the development of their well-being.[15] The three primary features of the rights-based approach are as follows:[16]
· All rights are equal and universal
· All people, including children are the subject of their own rights and should be participants in development, rather than objects of charity
· An obligation is placed on states to work towards ensuring that all rights are being met
The rights-based approach demands a holistic form of programming to ensure widespread protection, while paying particular attention to the most vulnerable and marginalized in our society in order to ensure the full and equal development of individual rights.[17] This framework also
places a moral and legal obligation on states to make sure that everyone’s rights are being respected and to determine and remedy those cases where this is not happening. By ratifying human rights treaties, states accept the responsibility of implementing the rights enshrined therein – states become legally accountable… A rights-based approach provides standards that can be measured through monitoring in order to ensure accountability of States parties and other stakeholders to children’s rights.[18]
According
to Kathy Vandergrift, of World Vision
adds real value because it puts the whole child in the centre, and then looks at all components and all factors that can impact that child’s situation. It is not just addressing one need – food, water or some of those things – but it looks at the whole child and treats that child as an actor in the situation, not just as a passive recipient.[19]
The rights-based approach represents a move from a more reactive case-based focus to one which is more proactive and systemic, centred on prevention.[20] One example of how this approach operates is as follows:
[I]f 100 children need to be immunized, the needs- or problem-based approach would say that after 70 children are immunized we have a great success rate of 70%. The rights-based approach recognizes that there are still 30 children that need immunization. The rights-based approach reaches out to even the most marginalized children and makes a difference in all children’s lives.[21]
Advocates
of this approach indicate that its aim is to build a culture of respect at home
and throughout the world, with a sense of accountability to children, not
merely for them. Professor Kay Tisdall,
Social Policy Professor at the
However,
despite the fact that the rights-based approach is engrained in the Convention
and in other international human rights instruments, witnesses emphasized that
many in
The reason that ‘rights talk’ is resisted by the powerful is precisely because it threatens (or promises) to rectify distributions of political, economic or social power that, under internationally agreed standards and values, are unjust.
These truths are laid bare in
Others are simply unaware of the Convention’s implications. The UNICEF Innocenti Research Centre notes that
the radical nature of the [Convention], recognizing children explicitly as subjects of rights, is neither fully accepted or properly understood by many governments. There is particular neglect of the principle of promoting the best interests of children through respect for their rights and of the obligation to listen and act on the views of children as an essential step to the realization of their rights.[25]
The Committee was frequently reminded of the fact that there is a distinct lack of awareness about the Convention and children’s rights in Canada, and heard a wide variety of concerns about the situation of children across Canada – particularly those who are already living at a disadvantage: the medically fragile, the disabled, Aboriginal children, migrant children, sexually exploited children, and those caught in the child welfare or youth criminal justice systems.
Witnesses were critical of the
perceived gap between the rhetoric and the realities of children’s rights in
The 21st Century will belong to our children and our children’s children. It is their dreams and aspirations, shaped by the circumstances into which they are born and which surround them as they grow up, that will give the Century its final definition. Those who are under eighteen today constitute more than a third of the world’s population and are already profoundly affecting our lives by their decisions and actions. For their sake as well as our own, we must do everything possible to reduce the suffering that weighs them down, open up their opportunities for success and ensure them a culture of respect. This is what the young people meant when they spoke to the General Assembly of the United Nations at the Special Session on Children in May 2002. “We want a world fit for children,” they said, “because a world fit for us is a world fit for everyone.”[27]
However, many witnesses expressed concern that there is often a disconnect between intent and concrete compliance with the Convention on the Rights of the Child. While the government attempts to conform to the rights-based approach in theory, many witnesses argued that it is hesitant to be bound by it in practice.
In response to these concerns, the Committee concluded that furthering the debate on children’s rights, thus raising awareness about these rights, and creating an impetus for government action was needed. The Committee sees its role as addressing the concerns of one of the most vulnerable yet promising segments of Canadian society in order to ensure that their voices are heard.
Katherine Covell, Professor at the University College of Cape Breton Children’s Rights Centre highlighted “the incredible importance of respecting children’s rights to the healthy development of society.”[28] This view was echoed in the comments of Minister of Social Development, Ken Dryden: “Fundamental to… our belief in the future, to our confidence as a country, are our children. If our children are doing okay, we are doing okay and we will be okay.”[29]
Martha Mackinnon put the impact of ensuring children’s rights bluntly, also touching on the reluctance of many to recognize that children are persons with human rights of their own:
Kids do not vote, but they also do not pay taxes and they do not phone MPs. They are not activists in that way.
Sadly, as a Canadian society, we have not moved far enough towards thinking that, if we give someone rights, that does not mean that we have taken them away from us… That is not my perception of how human rights work. My perception is the more human rights all of us have, the better off we all are collectively. Therefore, the notion that to give a kid something does not hurt someone else is a message that we are not selling. It is a message that I am a stronger, better parent. I am a stronger, better teacher. I am a stronger, better employer if every kid that I work with knows that he is just as much of a human being as I am, and that my rights are enhanced when every member of my society has them as well.[30]
Within
this context, witnesses have emphasized the particular vulnerability of children
as the only group in
Suzanne Williams of the International Institute for Child Rights and Development set out the importance of children’s rights by stating:
“Child rights saved my
life.” These words were shared by a
young Aboriginal Canadian woman at a session hosted by the International
Institute for Child Rights and Development (IICRD) in March 2004. Just 6 years earlier this young person had
attended a conference in
Thus, ensuring the promotion of and respect for children’s rights strengthens recognition of children as individuals – full human beings capable of making meaningful choices with the right guidance.
Children’s
rights have undergone significant evolution in the history of
However, while international human rights mechanisms are strengthening in the modern world, they must be incorporated into national laws to be of any force and effect.
Numerous
witnesses appearing before the Committee emphasized that
When I try to explain
the convention to children who are 15, 16 and 17, eventually one character…
asks, “What good is the convention?”
That is a valid point… for
Through
this Interim Report and its follow-up, the Committee aims to highlight these
concerns about the Convention in order to bring
C. THIS REPORT AND THE COMMITTEE’S WORK
The
Committee’s long term mandate is to analyze the state of children’s rights in
1. Fact Finding and an In-Depth Examination of the Canadian Context
Beginning
in December 2004, the Committee held a series of thorough hearings in
In
addition to its hearings in
Early
in its mandate, the Committee travelled to
During
that same fact-finding mission, the Committee travelled to
In
June 2005, the Committee began the first in a series of hearings across
In
October, the Committee travelled to the
During
this mission, the Committee also travelled to
In
2006, the Committee proposes to continue its hearings across
2. This Interim Report
This Interim Report discusses the history and background of children’s rights in Canadian and international human rights law, as well as the application of the Convention in domestic law. It also discusses lessons learned, highlighting witnesses’ concerns about the lack of full implementation of the Convention by the governments because of jurisdictional issues, the apparent unwillingness of various levels of governments at times to comply strictly with the terms of the Convention, the lack of uniform standards, a too-complex reporting process to the Committee on the Rights of the Child, and a lack of public awareness about the Convention and children’s rights.
The
Committee is releasing its preliminary results and recommendations in two
stages. First focusing on the process of
implementation of international law in
In
this report, the Committee explores witnesses’ concerns and recommends a number
of mechanisms to improve
The
Committee also suggests means to ensure a more effective application of the
Convention in
CHAPTER TWO – HISTORY AND BACKGROUND OF CHILDREN’S RIGHTS IN CANADIAN AND INTERNATIONAL HUMAN RIGHTS LAW
A. HISTORY OF
CHILDREN’S RIGHTS IN CANADA
1. Evolution of Approaches to Children in History
Approaches to that early stage of life, known as childhood, have evolved tremendously over time. In this Chapter, the Committee comments on some of the factors upon which childhood is contingent in Canadian society. While children were once considered property of their parents, today, societies are moving towards embracing children as persons with their own rights.
During
the Middle Ages in
However, children were still under parental control until well into their adolescence, viewed as a form of chattel or property. At the time, the English common law adopted the principle of “reasonable chastisement,” which gave parents the right to subject their children to corporal punishment. Parents could also sell their children into apprenticeship. Ultimately, there was little to stop children from being physically or sexually abused, or forced to work in dangerous conditions.[37]
By
the 19th century, children’s role in society and the family began to
change. This was a period of social
reform in the
2. Evolution of Approaches to Children in Canadian History
In the early years of Canadian
colonial history, children in
In the primarily agrarian British
and French colonies of the 18th and 19th centuries,
children were valued for their ability to work on the family farm and were
considered an asset, rather than a liability.
Travellers from
Parallel to what was happening in
The
gradual evolution from property to person status has also changed the way the State
views children and the way legislation affects children in
3. The History of Child Protection and Child
Welfare in Canada
As the State took on an increasing role in family affairs, governments became active in dealing with health standards, labour conditions, education, and emphasized the protection of children from abuse and neglect.[46] The State began to put together legislation giving power to both the state and child protection agencies to remove children from abusive homes, place them in foster care and bring cases to family court. Although these laws recognized parents as being the primary guardians, they also upheld the ability to restrict or override parental control when parents could not live up to their responsibilities.[47]
The
origins of child protection laws in
By the late 19th
century, many municipalities had established children’s aid societies and by
the early 20th century, all of
During the 19th century, modern ideas about child protection did emerge. Children’s aid societies, child protection societies, were given the right to apprehend children from paternal custody. Professional social workers began to take over from amateurs in the early 20th century…[51]
The 1960s marked a growing awareness of the issue of physical abuse of children. More reports of child abuse and neglect began to surface.[52] A similar situation occurred with respect to reports of sexual abuse in the 1970s and 1980s. At the same time, legislation began to change. As stated by Professor McGillivray, “discoveries about physical and sexual abuse of children have resulted in more child-centred laws in the Criminal Code and in provincial child welfare acts.”[53]
Until then, prevention had not formed an important part of the policies or programs of the child welfare agencies. “There was also no thought given to notions of children’s rights and children were not overtly involved in the child welfare proceedings where courts made decisions profoundly affecting their futures.”[54] Ultimately, child welfare authorities were alerted only when families failed to reach minimum threshold standards of care, as opposed to the situation that exists today, in which child abuse must be reported as soon as clearly established criteria have been breached.
4. Children’s Rights in Child Protection and Child Welfare Laws
The concept of children as persons with their own rights, rather than as objects of welfare did not become widespread until after World War II, and “[u]p until recently, ‘children’s rights’ was an oxymoron, a contradiction in terms – children do not have rights because they are children.”[55] Children on their own did not have the right to demand adequate protection and care from their parents.
In the last half of the 20th century, the concept of human rights took on sharper form, the concept of individual children’s rights culminating in the UN Convention on the Rights of the Child. Through the rights-based approach, children were considered full citizens entitled to minimum guarantee of social goods.[56] Recognizing children as full participants along with their parents and the state, the rights-based framework required that adults justify their actions towards children based on reason, maximum social good, and consideration of children’s rationality and preferences. The rights-based approach also emphasized the importance of the “best interests” of the child. In making decisions on behalf of children, this approach dictated that parents and the state base their actions on what is best for the child, instead of choosing the easiest or most convenient option.
Increasing sensitivity to human rights at home and abroad, as was particularly emphasized in the Canadian Charter of Rights and Freedoms,[57] led all the provinces to revise and amend their child protection and welfare legislation in the late 1980s and 1990s. All provincial and territorial legislation now requires that third parties who are aware of child abuse or neglect report their knowledge to law enforcement or child protection agencies.
B. HISTORY OF THE CONVENTION ON THE RIGHTS OF THE CHILD
1. The Origins of Children’s Rights in International Law
The history of
children’s rights at the international level is generally traced to 1924 and
the Save the Children International
The next international declaration on
children’s rights emerged after World War II.
In March 1959, 21 governments submitted comments on the draft of the 1959 Declaration of the Rights of the Child[60]
(“1959 Declaration”) to the United Nations Secretary-General. The first draft was prepared by the UN
Economic and Social Council’s Social Commission. On
Like the 1924 Declaration, the 1959 version was a brief document. It consisted of a preamble and 10 principles, which included the right to develop in a normal and healthy manner, in conditions of dignity (Principle 2); the right of physically, socially, or mentally disabled children to receive special treatment, education and care (Principle 5); the principle of the best interests of the child (Principle 7); protection from neglect, cruelty and exploitation (Principle 9); and the principle of non-discrimination (Principle 10).
The 1959 Declaration marked a turning point in children’s rights. Unlike the 1924 Declaration, which viewed children as objects of international law – “[it] basically dealt with welfare rights”;[62] in 1959, children were no longer considered the passive recipients of rights. Children were now viewed as subjects who were able to enjoy the benefits of specific rights and freedoms.[63] However, neither Declaration had an enforcement mechanism.
The geopolitical realities of the time made many States wary of a binding treaty on the rights of the child. It took 20 years for some States to withdraw their opposition. However, while it can be said that they remained reluctant participants,[64] the Member States of the UN had nonetheless recognized that children required their own set of rights and protections.
2. The Creation of the Convention on the Rights of the Child
Stemming from these two earlier instruments, the impetus for creating an international Convention on children’s rights began when the UN proclaimed 1979 as the International Year of the Child, in honour of the 20th anniversary of the 1959 Declaration. Poland initiated the process by submitting a first draft of the Convention to the Commission on Human Rights in 1978, with the hope that it would be adopted by the General Assembly to coincide with the International Year of the Child.[65] The Polish draft was almost identical to the 1959 Declaration, except for the inclusion of a short implementation mechanism. The Polish delegation was led by Dr. Adam Lopatka, Deputy Chairman of the UN Commission on Human Rights at the time. The first draft was ultimately rejected because it was insufficiently amenable to legal interpretation and enforcement. As well, the emphasis for Western governments was on civil and political rights, as opposed to the Eastern Bloc’s emphasis on economic, social, and cultural rights.[66] Nevertheless, the Commission on Human Rights asked the UN Secretary-General to get “views, observations, and suggestions” from the Member States, which resulted in submissions from 28 states, 4 from specialized agencies, and 15 from non-governmental organizations (NGOs).[67]
In 1979, the Commission on Human Rights established an open-ended Working Group, chaired by Dr. Lopatka, to negotiate and draft the Convention. The open-ended nature of the group allowed states who were not members of the Commission to participate in the drafting process.[68]
The creation of the Convention on the Rights of the Child was an ambitious and complex undertaking.[69] Drafting took eleven years, from March 1978 to March 1989. From the beginning, the members of the Working Group wanted the Convention to achieve the following goals:[70]
· Create new rights under international law for children where no such rights existed, including the right of children to preserve their identity and the right of indigenous children to practice their own culture.
· Enshrine in a global treaty rights which had previously only been acknowledged or refined in case law under regional human rights treaties.
· Create binding standards in areas in which there existed only non-binding recommendations, including safeguards in adoption procedures and the rights of mentally and physically disabled children.
· Impose new obligations in relation to the provision and protection of children, including the obligation on a state to take effective measures to abolish traditional practices prejudicial to the health of children, and to provide for rehabilitation measures for child victims of neglect, abuse, and exploitation.
· Enshrine the principle of non-discrimination and oblige states parties not to discriminate against children in their enjoyment of the Convention’s rights.
Although many representatives to the UN hoped
the draft Convention would be completed to coincide with the Year of the Child,
it became clear during the first few meetings of the Working Group that this
would not happen because the number of issues to deal with was so wide and
diverse. In the end, the Working Group
felt it was more important to draft a comprehensive Convention that covered all
aspects of children’s rights, than to conclude the negotiations quickly for the
sake of symbolism. The delay in
completing the draft of the Convention was also partially due to disinterest on
the part of many of the UN Member States, who were involved in the negotiations
surrounding the Convention against
Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment[71] at the same time.[72] Negotiations on the Convention on the Rights of the Child did not begin in earnest
until 1983. During each annual session
the Working Group adopted several articles of the draft Convention. Progress was slow, despite the Working Group’s
efforts to have the draft completed the year following each annual meeting. It is interesting to note that the
Ultimately, compromise was essential to the completion of the draft, as all participants realized that the document would have to be all-encompassing and stand up to scrutiny from the international community. Although the negotiations on the draft Convention took much longer than anyone had initially anticipated, when they were finally completed, the General Assembly unanimously adopted the draft.
3. The Participation of Non-Governmental Organizations
Although NGOs were involved from the beginning of the drafting process for the Convention,[73] they did not play a significant role until 1984, at which time they joined together to form the Informal Ad Hoc NGO Group for the Drafting of the Convention on the Rights of the Child (“NGO Group”), led by Defence for Children International, an NGO based in Geneva. The NGO Group submitted reports to the Working Group, supported proposed articles to the Convention, and made critical recommendations on how to change or improve other articles. The articles the NGO Group supported included issues absent in the original Polish draft, such as the protection of children from sexual exploitation, trafficking, torture, and armed conflict. The Group also lobbied for the article on youth criminal justice to be separated into two distinct articles. Other noteworthy contributions included the insistence on using gender-free language in the Convention, the encouragement of breastfeeding, and the discouragement of harmful traditional practices such as female circumcision. However, the NGO Group failed in its efforts to include provisions on the rights of internally displaced children, the protection of children from medical experimentation, and an increase in the minimum age for participation in armed combat from 15 years to 18 years of age.[74]
In the beginning, some delegations resisted the involvement of NGOs; however, by the time the Convention was completed, most delegations recognized the importance of the NGOs in the drafting process.[75] By the time the drafting process for the Convention was completed, it was the most comprehensive international human rights treaty in history, including economic, social and cultural rights as well as civil and political rights. The NGO Group is still active today and its members continue to work together to facilitate the implementation of the Convention on the Rights of the Child.
4. Optional Protocols to the Convention on the Rights of the Child
The Convention is accompanied by two Optional Protocols. These Protocols are essentially side treaties dealing with a specific issue contained within the Convention.
The first Optional Protocol, on the
The second Optional Protocol, on the Involvement of Children in Armed Conflict,[78]
came into force on
States Parties to the primary treaty may or may
not have signed the Optional Protocols, or vice versa. For example, the
5. The Committee on the Rights of the Child
Article 43 of the Convention provides for the establishment of a Committee on the Rights of the Child to monitor the implementation of the Convention among States Parties. The UN Committee is one of 7 human rights treaty bodies at the UN.[80] All States that have ratified the Convention are required to submit periodic reports to the UN Committee, which is now comprised of 18 independent experts – an increase from the original 10 – from Member States of the UN, currently including one Canadian, David Brent Parfitt. Each independent expert is elected for a 4 year term.
The Committee on the Rights of the Child is
based in
States Parties to the Convention are required to submit an implementation report to the Committee on the Rights of the Child within 2 years of ratification of the Convention, and every 5 years thereafter. After studying the periodic reports, the UN Committee adopts “Concluding Observations” – statements on its consideration of a State’s report – that contain comments on the State’s progress in implementing the Convention and recommend how to improve implementation in areas in which the State is falling behind. The Concluding Observations have no legal effect, being of moral and persuasive authority only. However, although States Parties are under no legal obligation to put the Committee on the Rights of the Child’s recommendations into practice, the UN Committee encourages all States Parties to make their reporting process transparent and to publish the country’s report as well as the UN Committee’s Concluding Observations, in order to stimulate public debate on the Convention.
In addition to monitoring compliance with the
Convention, the Committee on the Rights of the Child is also responsible for
monitoring compliance with the two Optional Protocols to the Convention. A State’s report on its implementation of the
Optional Protocols must be included in its periodic reports on the Convention
as a whole. In 2004,
6. The Unique Nature of the Convention on the Rights of the Child
The Convention on the Rights of the Child is unique among human rights treaties. The fact that it was widely embraced by the international community, demonstrated by its rapid ratification and entry into force, underlines the importance that all countries place on children. In particular, the Convention is noteworthy because:[81]
· It contains the broadest protection of rights of any international human rights treaty.
· Its implementation set a new standard for monitoring treaty compliance.
· The circumstances under which the Convention was drafted were unusual due to the delicate interplay between government and non-governmental actors.
· The Convention has been embraced with overwhelming enthusiasm by the entire world community.
With respect to children’s rights, the Convention also represents the first time that the needs and interests of children were “expressly formulated in terms of human rights.”[82]
7. Canada
As noted earlier,
Ratification of the Convention in
In preparation for signing the Convention, the federal and provincial governments examined the provisions of the Convention in order to amend legislation as necessary to ensure compliance. To facilitate intergovernmental coordination on the implementation of the Convention and reporting to the Committee on the Rights of the Child, the federal and provincial governments referred the issue to the Continuing Committee on Human Rights, led by the Department of Canadian Heritage.
For the Convention on the Rights
of the Child, the Continuing Committee established an informal
federal-provincial-territorial subcommittee to review developments at previous
negotiating sessions and, as appropriate, refine Canadian positions. Ultimately, this model proved to be of
exceptional value, since it permitted
CHAPTER THREE – INTERNATIONAL TREATIES IN DOMESTIC LAW:
THE IMPLEMENTATION PROCESS
A. RATIFICATION
Parliament, representing the Legislative branch of government, is not involved in this process. There is currently no formal role for Parliament, with no legal requirement for Parliamentary approval or study of a treaty prior to ratification. In fact, Parliament is not notified when treaty negotiations begin, nor is it consulted concerning the preparation, cost, desirability or impact of such a treaty. The government only tables treaties that it has ratified with Parliament on an ad hoc basis. As a result, international human rights treaties that are not directly incorporated into domestic legislation bypass the Parliamentary process.[92]
B. RESERVATIONS
At the time of ratification, the Executive also has the power to enter reservations to international treaties that allow them. A reservation is a unilateral statement made when signing or ratifying a treaty which essentially excludes or modifies the application of certain provisions of the treaty in the reserving State.[93] The purpose of a reservation is to allow a State to ratify an international instrument in order to let the consensus document go forward, while still recognizing that a certain provision within that instrument is not in this country’s best interests. Although the Vienna Convention on the Law of Treaties discourages States from making reservations,[94] and requires that they “must be compatible with the goal and objective of the treaty,”[95] ultimately, reservations allow the international community to reach a compromise – encouraging the participation of as many States as possible by allowing them to protect important national interests, while still ensuring the integrity of the treaty.[96]
It appears that recent Canadian governments
have been opposed to making reservations to human rights treaties based on the
“belief that human rights treaties must establish universal schemes rather than
a collection of different legal programs for each State.”[97] As stated by John Holmes of the Department of
Foreign Affairs and International Trade when he appeared before the Committee
in 2002, it is “
C. APPLICATION AND IMPLEMENTATION
Government and academic witnesses appearing
before the Committee for both this study and Promises to Keep, described the process of implementing
international treaties in domestic law in some detail. They highlighted the fact that
Witnesses from the Departments of Justice and Foreign Affairs noted that the Canadian government has two basic approaches to dealing with the domestic implementation of international conventions. In some instances, the government will develop specific legislation to ensure the domestic application of a particular international instrument. This is the case in relation to the Rome Statute of the International Criminal Court,[102] implemented in Canada through the Crimes Against Humanity and War Crimes Act;[103] the United Nations Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction,[104] implemented through the Anti-Personnel Mines Convention Implementation Act;[105] and the Geneva Conventions for the Protection of War Victims, implemented by the Geneva Conventions Act.[106]
Another approach is to avoid the development of specific enabling legislation, and to rely on existing domestic laws that are presumed to already respond to the concerns set out in the international treaty. When applying this approach, government officials conduct a review and analysis of existing law before ratifying the treaty to determine whether any amendment or new law is required to comply with the treaty obligations.[107] As stated by Irit Weiser, former Director of the Human Rights Law Section at the Department of Justice, during her appearance before this Committee in 2001,
As a prelude to ratification, the officials of the Department of Justice consult with colleagues in other federal departments; other agencies; the provinces and territories through the vehicle of [the] continuing committee; and with Aboriginal groups and other non-governmental groups. This consultation determines several things. It decides whether existing domestic laws and policies already conform to the treaty obligations. It determines if there are inconsistencies and if there are it decides whether new legislation and policies should be adopted or whether existing legislation and policies should be amended. And finally, it determines whether it is appropriate to maintain the domestic position even though it is inconsistent with the treaty provision and enter a reservation or a statement of understanding.[108]
This latter method appears to be the standard
with respect to
Some human rights
matters fall under federal jurisdiction, others under provincial and
territorial jurisdiction. Therefore,
human rights treaties are implemented by legislative and administrative
measures adopted by all jurisdictions in
Thus, international human rights treaties are
rarely incorporated directly into Canadian law, but are indirectly implemented
by ensuring that pre-existing legislation is in conformity with the obligations
accepted in a particular convention. The
Committee notes, however, that the government controls this verification
process.
It is important to note that the federal
government’s treaty-making and ratification powers do not give Parliament
exclusive jurisdiction to adopt the legislation necessary to implement
As
a result, implementation of international treaties where provincial laws and
policies are affected is often a shared, responsibility of the federal,
provincial and territorial governments, particularly in the case of human
rights treaties such as the Convention on
the Rights of the Child. As stated
by Professor Wayne MacKay of
The federal government
signed the Convention on the Rights of
the Child that makes
As the Labour Conventions case indicates, the federal government cannot enforce implementation.[112]
Government
witnesses noted that, in the past, this need for provincial legislation and
cooperation to ensure full compliance with
Given, therefore, that Canada is a federal state and that jurisdictions on many issues relating to children fall to the provinces or are shared with them, the federal government respects the importance of working with the provinces and territories, both before the Canadian ratification of an international instrument as well as afterwards, to ensure that Canada meets our international obligations.[114]
Yet even when these consultations and cooperation of the various jurisdictions prove difficult, Professor Peter Leuprecht of the Université de Québec à Montréal and Maxwell Yalden emphasized that once Canada has ratified an international treaty, lack of federal jurisdiction is not a valid excuse for failing to live up to the nation’s international obligations. This position is clear in international law, as stated in the Vienna Convention on the Law of Treaties:
Article 26 Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Article 27 A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
This presumption of good faith means that states must intend the treaties they ratify to be effective – notably, through implementation. Their signature is not a mere formality but entails real responsibilities to fulfill their international obligations to their utmost capacity.[115] The failure of any States Party to furnish adequate means of enforcement constitutes a violation of the treaty. This point was emphasized in Ariel Hollis Waldman v. Canada,[116] a case in which the UN Human Rights Committee criticized the federal government for violating the equality provision of the International Covenant on Civil and Political Rights through Ontario’s funding of a separate Catholic school system – despite the fact that this preferential treatment is entrenched in section 93 of the Constitution Act, 1867.[117]
Such is also the position of the Committee on the Rights of the Child. It told the Committee that it expects the
federal government to comply with the Convention despite the complexities of
ensuring that federal, provincial, and territorial laws conform. The UN Committee sees
The Committee notes that the application of a considerable part of the Convention falls within the competence of the provinces and territories, and is concerned that this may lead, in some instances, to situations where the minimum standards of the Convention are not applied to all children owing to differences at the provincial and territorial level.
The Committee urges the Federal Government to ensure that the provinces and territories are aware of their obligations under the Convention and that the rights in the Convention have to be implemented in all the provinces and territories through legislation and policy and other appropriate measures.[118]
In its General Comment on implementing the Convention, the UN Committee also emphasized that,
decentralization of power, through devolution and delegation of government does not in any way reduce the direct responsibility of the State party’s Government to fulfil its obligations to all children within its jurisdiction, regardless of the State structure.[119]
D. ENFORCEMENT MECHANISMS
Enforcement mechanisms are another important part of the implementation process when dealing with compliance with international law. While international trade treaties have traditionally been bolstered by the presence of strong enforcement mechanisms to regulate trade disputes between nations, it is only recently that international human rights has begun to utilize more specific mechanisms to ensure that there are consequences for nations that fail to adhere to their obligations.
A clear example of such a mechanism is the recently implemented International Criminal Court, which provides criminal sanctions for those perpetrating crimes against humanity and war crimes. More common are the UN treaty bodies, which inspect the actions of states with respect to a particular human rights treaty – for example, the Committee on the Rights of the Child. These treaty bodies examine country reports and issue Concluding Observations commenting on and criticizing that country’s level of compliance with the particular treaty, and providing recommendations for improvement. While States Parties have no legal obligation to put the Committee’s recommendations into effect, the treaties do provide an important monitoring role and their Concluding Observations carry significant moral and persuasive weight. However, this process is not a strict “enforcement” mechanism, given the treaty bodies’ limited powers.
It is important to note that again, Parliament has no
explicit role in terms of
[1] Report of the Standing Senate Committee on Human Rights, Promises to Keep: Implementing Canada’s Human Right Obligations, December 2001.
[2] UN General Assembly Resolution 44/25 1989, see Appendix B.
[3] Promises to Keep, p. 7-8.
[4]David Moloney, Vice-President of the Policy Branch, Canadian International Development Agency, testimony before the Standing Senate Committee on Human Rights, May 16, 2005.
[5]Only the
[6] The Honourable Ujjal Dosanjh, Minister
of Health, testimony before the Committee,
[7] Martha Mackinnon, Executive Director,
Justice for Children and Youth, testimony before the Committee,
[8]Ibid.
[9]Maxwell Yalden, Former Member, United Nations Human Rights Committee, testimony before the Committee, March 21, 2005.
[10] Professor Al Aynsley-Green, Children’s
Commissioner for
[11] Justice Jean-Pierre Rosenczveig, President of the Board of Directors of the International Bureau for Children’s Rights, International Bureau for Children’s Rights Conference, Making Children’s Rights Work: National and International Perspectives, Montreal, November 18, 2004.
[12]Rana Khan, Legal Officer, United Nations High Commissioner for Refugees Canada, testimony before the Committee, May 2, 2005.
[13] Mary Robinson, “Foreword” In A Human Rights Conceptual Framework for UNICEF, by Marta Santos Pais, Florence, Italy: UNICEF, 1999, p. iv.
[14] UN Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), November 27, 2003, CRC/GC/2003/5, para.11.
[15] Tara Collins, Senator Landon Pearson and Caroline Delany, Discussion Paper, Rights-Based Approach, April 2002, p. 3; Anne McGillivray, Professor, University of Manitoba, testimony before the Committee, September 26, 2005.
[16] Collins, Pearson, Delany, p. 1.
[17] Suzanne Williams, Managing Director,
International Institute for Child Rights and Development, testimony before the
Committee,
[18] Collins, Pearson, Delany, p. 4.
[19]Kathy
Vandergrift, Chair of the Working Group on Children and Armed Conflict, World
Vision
[20] Dr. Cindy Kiro,
Children’s Commissioner of New Zealand, testimony before the Committee,
[21]Williams testimony.
[22]Kay Tisdall, Social Policy Professor, Programme Director, MSc in Childhood Studies, University of Edinburgh, testimony before the Committee, October 12, 2005.
[23]Aynsley-Green testimony.
[24] Louise Arbour, LaFontaine Baldwin
Symposium,
[25] UNICEF Innocenti Research Centre, Independent Institutions Protecting Children’s Rights, Innocenti Digest No. 8, June 2001, p. 4.
[26]A Canada Fit for Children: Canada’s Plan of Action in Response to the May 2002 United Nations Special Session on Children, Government of Canada, April 2004, see Appendix F.
[27]Ibid., p. 9; The Honourable Senator Landon Pearson.
[28] Katherine Covell, Professor, University
College of Cape Breton, testimony before the Committee,
[29] The Honourable Minister Ken Dryden,
Minister of Social Development, testimony before the Committee,
[30] Mackinnon testimony.
[31] UNICEF Innocenti Research Centre, Digest No. 8, p. 1-3, and 13; UN Committee on the Rights of the Child, General Comment No. 2: The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, November 15, 2002, CRC/GC/2002/2, para. 5.
[32] Aynsley-Green testimony.
[33] Suzanne
Williams, “Meeting Canada’s Obligations under the UN Convention on the Rights of the Child: From Paper Concepts to
Living Benefits for Children” Brief submitted to the Committee,
[34] Jeffrey Wilson, lawyer, testimony before
the Committee,
[35] See Appendix A for a complete list of witnesses.
[36]For a discussion
of
[37] Nicholas Bala, “Child Welfare Law in
[38] Ibid., p. 3; Aynsley-Green testimony.
[39] The principle of parens patriae originated with the English kings in medieval times who acted as parent to their subjects, and had an obligation to provide the basic necessities of life and to look after them in certain cases.
[40] Marge Reitsma-Street, “More Control Than
Care: A Critique of Historical and Contemporary Laws for Delinquency and
Neglect of Children in
[41] Ibid.
[42] Neil Sutherland, “History of Childhood”, Canadian Encyclopedia, available at: http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0001579
[43] Ibid.
[44] Ibid.
[45]Aynsley-Green testimony.
[46] Stuart N. Hart, “From Property to Person Status: Historical Perspective on Children’s Rights,” American Psychologist January 1991, p. 54.
[47] Brian R. Howe, “Implementing Children’s
Rights in a
[48] S.O., 56
[49] Canadian Encyclopedia, Child Welfare, available at: http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0001578
[50] Bala (2004), p. 3.
[51] McGillivray testimony.
[52] Canadian Council on Children and Youth.
(1978) Admittance Restricted: The Child
as Citizen in
[53] McGillivray testimony.
[54] Bala (2004) , p. 3.
[55] McGillivray testimony.
[56] Reitsma-Street, p. 517.
[57] Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
[58]
[59] Geraldine Van Bueren, (1995) The International Law on the Rights of the Child, p. 8.
[60] UN General Assembly Resolution
1386(XIV),
[61] Van Bueren, p. 12.
[62] McGillivray testimony.
[63] Van Bueren, p. 12.
[64] Ibid., p. 13.
[65] Ibid., p. 14.
[66] Cynthia Price Cohen, Rights of the Child, available at http://www.arrc-hre.com/publications/hrepack1/page55.html
[67] Van Bueren, p. 14.
[68] Ibid.
[69]The Convention in its present form is considerably longer than the one originally proposed by the Polish delegation in 1978. Many articles required several re-writes involving negotiations among the members of the Working Group. Between 1979 and 1987, the Working Group met for one week each year to consider proposals and amendments to articles, and to write the draft. In 1988, the group met twice for two week periods each time. The first two weeks were used to complete the first draft of the Convention, and the second to complete a review of the Convention and to revise and unify the text. In the beginning, the Working Group consisted of 43 states, eventually growing to over 80 states by the time the Convention was completed.
[70] Van Bueren, p. 16.
[71] General Assembly resolution 39/46, December 10, 1984.
[72] Van Bueren, p. 13.
[73]This is not surprising as it was always intended that NGOs should play an active role within the UN structure, as described in Article 71, Chapter 10 of the UN Charter.
[74] Ibid, p. 142-143.
[75] Ibid., p. 145.
[76] General Assembly Resolution 54/263,
[77]
[78] General Assembly Resolution 54/263,
[79]
[80] The others are: the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, the Committee Against Torture, and the Committee on Migrant Workers.
[81] Price Cohen, (1990).
[82] Ombudsman for
[83] Michael Jupp, “Justice, Not Charity: The
United Nations Convention on the Rights of the Child,” On the Right Side:
[84] 999 U.N.T.S. 171, 1976.
[85] 993 U.N.T.S. 3, 1976.
[86] UN Working Group Activities, 1978-1979.
[87] Email correspondence with Marthe St-Louis (Foreign Affairs Canada).
[88] Gordon Fairweather, “
[89] John Holmes, “Canadian Ratification of
International Treaties,” On the right
side:
[90] John Holmes, Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade, testimony before the Committee, June 11, 2001.
[91] Capital
Cities Communications Inc. v. Canadian
Radio-Television Commission [1978] 2 S.C.R. 141; “Labour Conventions Case” Attorney General for
[92] Ibid., p. 2-4, 24-28.
[93]
[94] See the principles enunciated in article 26 of the Vienna Convention cited in Part B of this Chapter.
[95] Nicole LaViolette, The Principal International Human Rights Instruments to which Canada has not yet Acceded (January 2005), p. 62.
[96] J.-Maurice Arbour, Droit international public, 4th ed. (Cowansville, Québec: Éditions Yvon Blais, 2002) p. 99; LaViolette, p. 62.
[97] LaViolette, p. 62.
[98]John Holmes, Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade, testimony before the Committee, 18 March 2002.
[99] Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; “Labour Conventions Case” Attorney General for Canada v. Attorney General for Ontario, [1937] 1 D.L.R. 673 (J.C.P.C.); Joanna Harrington, “State Actors and the Democratic Deficit: The Role for Parliament in Treaty-Making” Document prepared for the Department of Justice, May 2005, p. 7.
[100]However, Benjamin
Dolin notes that “the impact of ratified treaties in
[101] Yalden testimony.
[102] UN Doc. A/CONF.183/9.
[103] S.C 2000, c. 24.
[104] UN Doc. A/C.1/57/L.36.
[105] S.C 1997, c. 33.
[106] R.S.C. 1985, c. G-3.
[107] The Honourable Irwin Cotler, Minister of
Justice, testimony before the Committee,
[108] Testimony of Irit Weiser before the
Standing Senate Committee on Human Rights,
[109]
HRI/CORE/1/Add.91,
[110] Ibid., para. 138.
[111] Dolin, p. 12-14.
[112] Wayne MacKay, Professor, Faculty of Law,
[113]Promises to Keep, p. 23. For a full discussion of the role of the Continuing Committee, please see Chapter 4 Part B1.
[114] Cotler testimony.
[115]Rebecca Cook, “Violations of Women’s Human Rights” (1994) 7 Harvard Human Rights Journal, p. 147.
[116] ICCPR/C/67/D/694/1996, Human Rights
Committee, 67th Session, October 18 to
[117]Despite the Human
Rights Committee’s rebuke, the federal government responded that education was
a provincial responsibility and could do nothing. For its part, the
[118] UN Doc. CRC/C/15/Add.215, Committee on the Rights of the Child, Concluding Observations, para. 8-9. Appendix E.
[119] UN Committee on the Rights of the Child, General Comment No. 5, para. 40.
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