Proceedings of the Standing Senate Committee on
Human Rights
Issue 2 - Evidence, May 15, 2006
OTTAWA, Monday, May 15, 2006
The Standing Senate Committee on Human Rights met this day at 4:04 p.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: Honourable senators, I see a quorum. We are here to hear evidence with respect to the study that we are now continuing under the new session. It is to examine and report upon Canada's international obligations in regards to the rights and freedoms of children.
As honourable senators know, we have been studying the Convention on the Rights of the Child, and other related international instruments, with a view to seeing how Canada has implemented them and to what extent. Having filed already our interim report, we hope we can come to a final recommendation and conclusions.
We are delighted that we can hear further witnesses in our study before we draft the final report. On this panel, we have Dr. Margaret Somerville, from the Centre for Medicine, Ethics and Law, McGill University; and Ms. Elspeth Ross, from the Adoption Council of Canada. Welcome.
Dr. Margaret Somerville, Centre for Medicine, Ethics and Law, McGill University: Thank you for inviting me and listening to me.
The work that I have been doing over the last two years is about biological bonds between children and parents. What I want to propose to you is that there are several ways in which we are now unlinking parent-child biological bonds in the context of redesigning human biology, which, put another way, are the new reproductive technologies.
I have looked at the link between adoption, new reproductive technologies and same-sex marriage. The link is that all of them unlink the biological bonds between parents and children. It is interesting, because in Canada we have relatively new legislation in relation to reproduction — the federal Assisted Human Reproduction Act — and we have now legislation in relation to marriage, which is the Civil Marriage Act. Both of them are less than two years old. It is most appropriate that the Senate is looking at what they mean in relation to children, and doing so in the situation that we are facing, which is one of radically new and different technological interventions.
My basic proposition is that we must take children's rights to their biological heritage and biological parents seriously. I think that issue is now on the table. There is an old saying in human rights law, that nowhere are human rights more threatened than when we act purporting only to do good. The reason for that is we tend not to see the harms that follow from trying to do that good.
In our debate about the Civil Marriage Act, we were trying to do good. We were trying to stop the horrible discrimination that often happened in relation to gay, lesbian, transgender and bisexual people. However, I participated in that debate frequently in various forums and I sincerely believe that we did not look adequately, in either the public square or in our two Houses of Parliament, at what that meant for children's rights. You now have an opportunity to do that.
The other important point here is if we think about the voiceless people affected by our legislation in Canada, children are probably the single largest group. We, as adults, have responsibilities to speak for them; and yet, I have found that increasingly, we do not do so. Our societies are focused on intense individualism and on our rights; and since we are adults, children get left out.
I also looked at the Convention on the Rights of the Child and I would like to make a brief comment on that. Most relevant to the topic I am addressing — the issue of biological bonds — are articles 7, 8 and 9.
I went back this morning to look at the history of that convention. It was approved by the United Nations General Assembly in 1989, when most of the issues — which people who work in the field ethics deal with — would not have even appeared in science fiction novels. It would have been completely outlandish to contemplate that we could make a child in some way that was not from an ovum and a sperm, a topic which has to do with biological bonds.
When you read those provisions in the convention, it talks about the children having a right from birth to a name; and, as far as possible, the right to know and be cared for by his or her parents. There was no concept that you had to define who those people were or ``what'' the parent was. It was a man or a woman. That is no longer true today.
There are many provisions in this convention that I would suggest to you we have to read in the context of the time at which it was approved. Canada signed on in 1990; and we have to think about what we meant by that then and not radically change the nature of what we meant by it. In fact, however, you could, if you gave a future interpretation to it, see it as allowing things that I think we should not allow.
To come to the points that I want to make, I will go first to the Civil Marriage Act. When marriage is restricted to a man and a woman, that in itself establishes as a norm children's rights to a biological mother and father and to be reared by those people; unless — and here you come to the exception, which has been the general exception — you can show that this is contrary to the best interests of the child, in which case you allow adoption as an exception to parenting by the biological parents.
When the Civil Marriage Act was passed — and it is a part of that act that is not often spoken about — the entire second part changed the definition of ``parenthood'' in every federal piece of legislation. It changed it from ``natural parents,'' which was in the previous pieces of legislation, to ``legal parents.'' In other words, we have changed parenthood in general from natural and biological parenthood to legal and social parenthood.
Let us move now to new reproductive technologies, because they also change the biological basis of parenthood and change what can be done to children with respect to their biological antecedents and who are their parents. Under other international law instruments, which I would suggest are also relevant to interpreting the Convention on the Rights of the Child — for instance, the United Nations Declaration on Human Rights is the primary example, but the International Covenant on Civil and Political Rights as well — men and women have a right to marry and found a family. Therefore, the right to marry is not simply a single right; it is a compound right, first to marry and then to found a family.
In those international law instruments, because the right to marry is restricted to a man and a woman, then the right to found a family is also restricted to a man and a woman. We have changed that in Canada. Now the right to marry, which carries the right to found a family, is not limited to opposite-sex couples but includes same-sex couples.
My understanding is that the provisions in the Assisted Human Reproduction Act — for instance, against surrogate motherhood and, possibly, against cloning — will be challenged by gay couples as unconstitutional, as discrimination against them and their right to found a family, which comes with the right to marry. We have to consider, from that perspective of children, what are their rights, both in terms of knowing their biological antecedents — who is their biological mother and biological father — and secondly, what are their rights to natural biological antecedents.
The new science has already made one child who has three genetic parents. A woman had failed mitochondrial DNA, which is the DNA in the fluid around the central nucleus of an ovum. If that is not working properly, the embryo cannot develop. Scientists took an ovum from a donor woman, removed the nucleus and took a nucleus from the prospective mother's ovum, put it in and fused it, then fertilized the combined ovum with the sperm of the woman's husband. Therefore, the baby has the mitochondrial DNA of one woman, the central nucleus DNA of its biological mother and the DNA of its father.
Those are not the only things that are happening. Also on the horizon is the ability to make sperm and ova from adult stem cells. It theoretically would be possible to make a child from two men or two women so they could have their own shared genetic child.
In the paper you have been given, I argue that we now have to legislate new rights for children in two ways at least. One is the right to be conceived with a natural biological heritage. That is, to have untampered-with biological origins and, in particular, to be conceived from a natural sperm from one identified, living, adult man — and each of those words has a reason for being there — and a natural ovum from one identified, living, adult woman. ``Identified'' means the child has a right to know through whom life travelled to that child — that we need that genetic identity. Work has now started on looking at that.
The reason for the living donor is that in my view, it is ethically wrong and it should be legally wrong for society to be complicit — as we are, because we provide the reproductive technology for this — in creating a child whom we know can never meet one or both of its parents, which is true if the parent is already dead. ``Adult'' because it is now possible to use gametes from aborted fetuses. Therefore, you would have a child born whose mother or father never lived. I would argue that the first right of the child is a right not to be conceived from parents who are already dead.
The second right is to know the identity of their biological parents, and this applies to children conceived from donated gametes, artificial insemination with donated sperm, or those who are adopted.
I would suggest we need a prohibition on society approving or funding any procedure for the creation of a child unless it is consistent with children's rights to a natural biological heritage and to know what that heritage is, in particular, to know their biological parents.
Indeed, the new research is showing that children need access to a wider biological family than just their parents. Although I may have to get permission to give it to you, I have a draft paper with me from a psychologist at the University of Chicago that the committee may want to view. He is looking at how we form our identity; how we find meaning in life. He suggests it is by both positive and negative identification with those who are closely biologically related to us. We see things we like in our biological relatives and try to copy those characteristics, and we see things we do not like and we vow we will never be like that. The latter is the positive power of negative identification.
I believe that recognition of any genetic procedure harmful to a future child or generation or contrary to their interests is morally unacceptable and should be prohibited. Whatever we do to these children regarding their biological identity, we do to all their descendants as well.
I would suggest that the natural biological heritage and knowledge of those origins are the natural rights of the person that we need to articulate and honour.
The right to bear children does not include the right to bear children denied their natural rights of biological identity and natural heritage. Most countries are now accepting this. England, Australia and the Scandinavian countries are just some of the countries that will not allow gamete donation if the donors are not prepared to be identified. There is a strong push from the fertility industry against that because they are worried their industry will not be able to function to the extent it does presently. I believe, as our Canadian law currently states — and I hope it is maintained — that this should not be a matter of a commercial transaction in any aspect. However, we have recently heard that although there is a prohibition in the Assisted Human Reproduction Act, there is still advertising in Canada asking to buy donated ova. We understand there are still sales despite a serious prohibition, the penalty for which, for a prosecution on indictment, is a $500,000 fine and up to 10 years in jail. It is no small matter. I could say more about this. I have been researching it for two years, which means that as an academic, there is a lot to say.
Finally, let me say this: Much as we were trying to do the right thing in legalizing same-sex marriage, we necessarily took away children's rights to a mother and father in doing that. A same-sex marriage says those two people have the right to found a family, so it has to say that that means children do not have rights to their two biological parents. We need to think about that from the perspective of children's rights. I do not think we did that sufficiently when we enacted that legislation, which does not mean that we might not still have enacted it. Regardless, we do need to legislate these further rights for children, in particular, because we took away those rights that came to them automatically with the marriage of their parents.
Elspeth Ross, Adoption Council of Canada: Thank you for the opportunity to appear before you today on behalf of the Adoption Council of Canada, ACC. This is our first appearance before this committee.
I am a research volunteer for the ACC, formerly executive director, information coordinator and board member. I am an adoptive parent within Canada of Aboriginal children, now adults, and I am also grandparenting. I worked as an educator in adoption, permanency and fetal alcohol spectrum disorder for many years, locally, provincially and nationally.
The ACC is expressing concerns about the rights of a group of disadvantaged children and youth largely forgotten by all levels of government.
These children and youth come into the child welfare system because of abuse, neglect or family breakdown and they are benignly neglected by a system set up to protect them. Their fundamental rights to family and culture are forgotten once they are ``safe'' in care.
We are also concerned about children adopted from foreign jurisdictions who do not have the same right to automatic citizenship as children born to Canadians abroad or adopted in this country; all adopted children whose adoptive parents do not have equitable maternity benefits so they have time to integrate their children into their families; and about the right to know origins.
The ACC was founded in 1989 and incorporated in 1991 as a non-profit national charitable organization whose mission was to inform and educate Canadians about all aspects of adoption, promote the placement of waiting children in permanent families, promote openness and honesty in all aspects of adoption, and work towards legislative reform.
The Canada's Waiting Children program recruits families for children in foster care in need of permanent families.
The issues here today: An overarching concern is Canada's responsibility to ensure proper implementation of the UN Convention on the Rights of the Child across Canada. Adoption and child welfare are provincial responsibilities; however, the UN Committee on the Rights of the Child paper issued two years ago — it was a general comment paper, which I supplied — states in paragraph 41:
The committee reiterates that in all circumstances, the State which ratified or acceded to the Convention remains responsible for ensuring the full implementation of the Convention throughout the jurisdiction.
That paragraph ends with the statement:
Further, there must be safeguards to ensure that decentralization or devolution does not lead to discrimination in the enjoyment of rights by children in different regions.
Canada is decentralized.
It will be clear that there is discrimination against adopted children and their families at the federal level, with unequal treatment under the Citizenship Act and the Labour Code.
Further, because many services for children are provincial, the federal government uses that as an argument that it should not take any responsibility.
Under the convention, the federal government does have some responsibility to ensure that certain services are provided to Canada's vulnerable citizens. First, permanency: Children need families and the security of growing up with ``continuity in a child's upbringing,'' which is article 20 of the convention.
There needs to be national concern about the large number of Canadian children in the foster care system, and for teenagers, this means group homes, not families. There are 76,000 kids in care and over 22,000 in permanent care, with the state as parent.
We know that more than half of the children in care are Aboriginal. The insecurity, from moving around, shows its effects through attachment problems, mental health issues, homelessness, contact with the justice system, and becoming a burden on society.
Various forms of permanent placement need to be championed, prepared for and supported, such as open adoption, guardianship and kinship care.
Some provinces are making great efforts to find adoptive homes for children, many of whom have special needs, for example, B.C., Alberta, New Brunswick and Ontario. Quebec is now taking steps to amend its legislation. There are, however, more inter-country placements in Canada than in-country placements.
The need for data and research: This committee could lead by promoting data collection and research for Canada, especially outcome research. The National Longitudinal Study of Children and Youth leaves out children in care and Aboriginal children. The role of adoption in child welfare practice is limited and this is reflected in a lack of Canadian adoption research.
Aboriginal children: The committee's interim report mentions adoption only in relation to the reservation applied to article 21 of the convention, which says that Canada need not apply adoption provisions since they are inconsistent with customary care for Aboriginal people. There was an urging in the document from the UN Committee on the Rights of the Child in 2003 that dialogue with Aboriginal people be continued with a view to withdrawal of the reservation. We have given this issue priority and have begun planning, together with key Aboriginal groups, to find ways to have the ``difficult conversations.''
We would like this to culminate in a national round table on the issue. Meetings are needed to find ways to provide Aboriginal children in care with a committed, permanent family, while at the same time ensuring that they do not lose their connections to culture and community. Preliminary discussions are leading to a greater understanding, but they are only preliminary.
There are promising practices and I have detailed these for senators in this report. The Yellowhead Tribal Council has a customary adoption program and is placing children. There are ceremonies to welcome non-Aboriginal families that have adopted into communities. There is also designation of cultural mentors for families. There is legislation on custom adoption in the Northwest Territories and a process in British Columbia. However, there is a need for other provinces and territories to protect the rights of children in custom adoptions.
Citizenship and adoption: The committee's interim report shows concern about the right to an identity and the facilitation of the acquisition of citizenship for children adopted abroad by Canadians — article 7 of the convention. Today, May 15, I am happy to say that proposed legislation is finally being introduced to amend the Citizenship Act (Adoption). Under current immigration processes, children adopted internationally enter Canada as permanent residents and parents must apply for citizenship on the child's behalf. The paperwork can take years. The bill is not only about making it easier for Canadians to adopt abroad, but also about treating adopted children equally and erasing the distinctions that make them different from birth children. It is about equality rights, per section 15 of the Canadian Charter of Rights and Freedoms, and ``the right to acquire a nationality,'' per article 7 of the convention. This must apply to adoptees in the past whose parents never did apply for them and to those adopted by Canadians living abroad. Some Canadians, adopted very young, are now under threat of deportation because they have been incarcerated. There may be a danger of some becoming stateless.
Adoption should be an irrevocable process that confers on the adopted child the same rights as the birth child. Deportation would represent a clear case of human rights violation. The Hague Convention on Intercountry Adoption states in the preamble and in repeats in four different articles that the child will reside permanently in the receiving state. The International Social Service, ISS, based in Geneva, has brought attention to this threat of deportation of Canadian adoptees to 100 countries in its monthly review. Documents of the special meeting on the Hague convention quote the UN Convention on the Rights of the Child requiring states to ensure that the child adopted internationally ``enjoys the safeguards and standards equivalent to those existing in the case of national adoptions.'' We are hopeful that the proposed legislation introduced today and its regulations will look after this serious matter.
Employment insurance: Women who give birth and women who adopt are treated differently. Adoptive families have been fighting for a long time for parental leave and employment insurance benefits equal to those of mothers who give birth. Many children adopted locally or internationally have special needs. They need as much time as possible to adjust to their new family and environment.
The right to know: The Adoption Council of Canada shares the concern in the 2003 observation of the UN Committee on the Rights of the Child under adoption that ratification of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption has not been followed up with legal and appropriate measures in all provinces. We believe strongly that ``certain provinces do not recognize the right of an adopted child to know, as far as possible, his/her biological parents.'' That is a quote from article 7 of the convention.
Four Canadian provinces have unsealed their adoption records, B.C., Alberta, Ontario, and Newfoundland and Labrador. The passage of Bill 183 in November 2005 without a disclosure veto was a triumph. As well as adoptees, people created through donor insemination have their rights violated when they do not have access to information about their origins. In new reproductive technology, we should learn lessons from adoption. We urge this committee to work to amend the Charter of Rights and Freedoms to include children. This would, we hope, give them rights to resources, services, data and research.
The Chairman: We have heard a great deal of evidence about children and their rights. Both Dr. Somerville and Ms. Ross have touched on the right to know in a different way.
Senator Nancy Ruth: You are the historian, but I was surprised when you said that rights had come to children before we changed the Civil Marriage Act. I always think of marriage and the procreation of children as being a link within the Western Christian church. In any case, I do not necessarily think of rights of children; I do not even think of rights of wives 300-500 years ago, when female children had fewer rights than male children. Therefore, I do not understand that premise. My question is: What do you do with a continent like Africa, where the inhabitants of so many villages and towns have no biological parents? If you need biological parents to gain a sense of identity, positive or negative, what happens when biological parents are constantly disappearing?
Dr. Somerville: I will respond to the first part of your question. You could say that the Universal Declaration of Human Rights articulated human rights that already existed; it did not constitute those rights. It was declaring the universal rights that we believe are at the foundation of humanity. Therefore, you can say that the rights included in it pre-existed their expression in that particular international legal instrument. One of those rights, per article 23, is the right of men and women to marry and found a family. That marriage right sets up the reciprocal rights between parents and children. It tells parents that they have obligations, as our marriage laws presently do, and they cannot simply walk out on their children. I do not want to be too technical, but in jurisprudential analysis, rights are always the corollary of duties, and vice versa. If someone has a duty, then someone else has a right. If the parents have a duty toward the child, then the child has a right with respect to the parents. The base for this analysis is found in jurisprudence and comes from legal theorists.
As to the second part of your question, there always have been kids who do not have their biological parents and we have accommodated that, as we have just heard, through the institution of adoption. Previously, the basic norm, as the words ``natural parents'' showed in all of our legislation, was: You have a right to your mother and father, to know who your biological parents are, and if at all possible, to be brought up by them. Sometimes it is not possible. They either separate or one dies, so as an exception to that norm, what are the rules governing how we treat the child? As a society, our rules are as applied by our courts — that you must always act primarily in the ``best interests'' of that child to arrange an exceptional situation, which is adoption.
However, by taking away the biological parents, the Civil Marriage Act made any two married people the norm or the basic unit. You can then argue that that, correlatively, made the right to your biological parents, to even know who they were, more the exception than the rule. You cannot have two competing rules: One must be the rule; one must be the exception.
If we leave marriage as it is now — and I believe we should really think about whether we want to do that and whether we should look at it again from the perspective of children's rights — then, at the very least, you need new, positive legislation that gives the children back those rights. There is a principle in ethics that when you cannot avoid doing harm because there is something else that you must do, and the other thing that you feel you must do does harm, then you must act to the best of your ability to try to minimize that harm.
I am proposing to you that, ethically, we have to do that by permitting, as my colleague has said here, first, the right to know the nominal identity of one's biological parents and not just information about them; and second, possibly the right to meet them or be able to contact them, certainly if both parties agree; and third, and I think extraordinarily importantly in relation to this new science with which I am dealing, the right to be born from natural human origins. That is extremely important. In the field called synthetic biology, which we are more worried about in relation to bioterrorists at the moment than children, they are talking about making living organisms from the genes on up. We are complicated and will take a long time to design, but that is the kind of thing that is coming through. We really must think about that.
Senator Munson: I would like to keep things simple. I find some of the arguments you are making quite complex.
In the last line of your presentation, you talked about imagining how much more damage would be done to a child who is born, not from the union of a natural sperm and a natural ovum, but from gametes constructed through biotechnology.
Is this a danger? Is this something that maybe is happening or could be happening? How would you describe that danger?
Dr. Somerville: In different contexts, we have had these kinds of discussions before. I do not think it is on the horizon at the moment. However, if you think back to what was not on the horizon 10 years ago, what is now both reality and on the horizon is astonishing. Having worked with the ethical and legal issues surrounding new genetic and reproductive technology, I am no longer surprised.
A while ago, I had a journalist call me. She was breathless on the other end of the phone. She said, ``You will not believe what they have done now.'' I said, ``Oh, they have cloned a baby.'' She said, ``No, no. It is Starbucks, this famous stud bull that they have successfully cloned.'' I was relieved that it was only Starbucks. That gives you an idea that this is possible.
In our new Assisted Human Reproduction Act we have, rightly, I believe, expressly banned cloning of embryos; that is, making an embryo from the DNA of either a living or a dead person. At the time we passed that act, which was only in 2004, we did not know that it would be possible to make gametes from stem cells. That is relatively recent news. This science is moving so quickly that people have huge difficulties keeping up with it intellectually if they are not in the field. Even the people in the field will tell you that progress is so dramatic and so specialized that they have trouble keeping up with their own larger field.
We must decide: What do we want to be our basic rule regarding children's biological origins, even if sometimes we might allow an exception to it — although I cannot think of something that we would do that for at the moment. Let me use another way to describe it — a presumption in favour of the natural as the basic rule that we want to adopt with respect to bringing children into existence. Let us say we believe they have a right to have a mother and a father, to know who they are, and to be made from natural biological origins. After that, if there are exceptional cases, you might want to think about allowing an exception, although I cannot imagine what it might be. That is really the approach I am proposing because our science is now racing ahead so quickly. Do you know what else this approach is like? It is like the precautionary principle. You have probably heard about the precautionary principle in relation to the environment. It says that we used to go ahead and do whatever we wanted to do and then think, ``Look at what we have done to the environment, all this damage. Sometimes, we cannot repair it.'' We now have the precautionary principle that says if you want to do something that could be damaging to the environment you have to show that it is justified before you are allowed to do it. That is what I am suggesting here. Let us go back to the natural origins of possibly the most important reality we have, namely, the transmission of human life from one generation to the next, and say: Let us start out with our basic presumption that we use the natural. After that, if we can justify exceptions to it, so be it. For instance, I think in vitro fertilization used in a natural way, with technological help, is acceptable. I do not have a problem with the baby being conceived outside the uterus and then transferred to the uterus. However, our danger is that we have lost that basic presumption.
Senator Munson: I know other senators have questions, but I have one for Ms. Ross of the Adoption Council of Canada. Given the rise in same-sex unions and the use of reproductive technologies, what legislative changes do you recommend protecting the rights of the child? You talked about the Charter of Rights. Do you have specific recommendations?
Ms. Ross: Broadly?
Senator Munson: Yes. You talked about the Charter of Rights. How would you interpret the rights of the child through the Charter? Would it be just a new line in the Charter?
Ms. Ross: Some kind of amendment as applied to children would be helpful.
The Chairman: I understood you to say that children are voiceless. In our interim report, we said they are not a constituency that is heard.
Ms. Ross: Yes. I feel that children are left out. We were thinking that something specific in the Charter would help so that some importance is given to them. We often see that the needs of adults, the needs of the parents and the needs of the rest of the world are paid attention to, but not the rights of children. We do not see research for children. They do not speak. My young children cannot speak. That is what I am concerned about.
Dr. Somerville: I totally agree with what Ms. Ross said and I think it is important. I would not suggest amending the Charter. I think that would be extraordinarily difficult. We have to understand exactly what you have said, namely, that children are not heard, that they are voiceless. The Charter says ``everyone,'' and ``everyone'' includes children. The Charter does apply to children; it is just that, in practice, they cannot claim their Charter rights. Everyone has rights under the Charter, and then there is the exercise of those rights. Children are not able to exercise their own rights. Furthermore, where they conflict with adults, the adults win.
Senator Hubley: I will ask a question on resources, and I will perhaps frame it this way: When children are with their biological parents, they have their rights. If that biological relationship or if the marriage breaks down — and perhaps there is an arrangement within that family whereby it is extended and new members brought in — immediately there have been decisions made for children that they had no input into.
That is probably the best-case scenario, but it may end up that a child then goes up for adoption. In between those two points, what is available by way of counselling for those children? How are their rights given expression? Or are they? They may not be. I am asking the question.
Now, if a traumatic event happens in a school, immediately we bring in counsellors and trauma units. What is available in what would be a fairly traumatic period for children who are moving from what was theirs and the only thing they have known? It has now changed dramatically, whether we like it or not. Are we looking for services or putting services in place for those children, both young and older? There are thousands of children who now do not have a mother and a father or any kind of identification; it is the state.
Ms. Ross: Children definitely should be involved in obtaining counselling. My experience is that there is opportunity available to children, that there are social workers and counsellors. However, people have to be proactive in finding them. Often, if children are in foster care and moved around, they may not have advocates who can help them to obtain the services necessary. It is not that easy, with the cutbacks in services. There are services out there, but often it is difficult to obtain the right ones. I believe definitely children should be counselled.
Older children, teenagers, can want to be adopted. People aged 18 can want a permanent family. However, the idea has to be presented to them; it has to be talked about positively. There are many negative things out there about adoption. It is a four-letter word. However, children of all ages do need to be talked to and have the opportunities. There are certainly many social workers and other people who could provide it, but the question is whether they are always available. Resources have been cut.
Senator Hubley: You have hit on my point of concern. It is great to have the counselling, but it still has to be facilitated by an adult, because the child does not have that kind of voice and probably does not understand the feelings, or why they are feeling the way they are, if that is the case. It is not automatic, is it? It is not an automatic service available to all children who might be going through this type of change in their lives.
Ms. Ross: Adoption is a provincial jurisdiction; there are 13 jurisdictions. We do not know everything that happens in all jurisdictions. Nothing is centralized. One would hope that this is available. With our large geography and our lack of resources, one wonders if even the option is presented to some children. People often think that sibling groups, for example, cannot be adopted, that there are no families out there who would take sibling groups; yet if the families are prepared and supported, they could easily do it, and brothers and sisters could stay together. The experience of the Adoption Council of Canada is that there are families who can, if assisted, help these children, and children, if presented with the possibility, could accept it. There is definitely a need for work on services and resources.
Senator Hubley: Can I ask you to comment quickly on the 76,000 children who are in care, 22,000 in permanent care, with the state as a parent? Do we need an education program here to find more families?
Ms. Ross: Definitely. The Adoption Council of Canada does have the Canada's Waiting Children program, but the council is not funded by government. It has been funded until recently through the Dave Thomas Foundation and Wendy's Restaurants, which is an American body. It is unfortunate that this program, which promotes placing children in permanent homes, does not have government funding. This is a real problem and there is a real need.
Senator Hubley: It is surprising. The government must know of the cost to keep that number of children in care. Somewhere along the line, we should be doing something better.
Ms. Ross: There should be resources so that many of these 76,000 children go back to their families. The best thing would be support services so that these children could stay in their birth families. There is often so little out there.
Dr. Somerville: In relation to this question, there has just been a large survey done in the United States of children from divorced families. There is a book out by Elizabeth Marquardt called Between Two Worlds: The Inner Lives of Children of Divorce. It goes into all those questions that you raised about the psychological impact.
Senator Kinsella: Canada ratified the children's convention in 1989. I would have to look it up, but the work on that convention would have begun many years before that. Have you reflected on whether or not a paradigm that is certainly at least 20 years old is the appropriate one to deal with the kinds of questions that you have brought before this committee today? That convention was drafted in a world less knowledgeable in the area of bioethics and reproductive technology. If we are trying to squeeze our analysis into the paradigm of the early 1980s — and I think the work started at the UN level back in the 1970s, if not the 1960s — we may have difficulty because the standard we are talking about is not appropriate.
I will tie this to Ms. Ross's point, when she raised, as did Senator Munson, the idea that maybe we in the Senate should be looking at a constitutional amendment to the Canadian Charter of Rights and Freedoms to put the word ``children'' in, notwithstanding how daunting a task it is to amend the Constitution.
The application of particularity sometimes can become the enemy of the general principle. As Senator Munson pointed out to us, section 15 says that everyone is equal before and under the law and has equal protection and benefit of the law without discrimination. Indeed, those listed prohibited grounds, over and above what is in the first lines of section 15, include physical disability, which was only added in because 1981 was the International Year for Persons with Disabilities. It was a focus.
I would be interested in whether or not you have reflected upon the model of human rights analysis that is imposed upon us, because we are really doing a study of Canada's implementation of the treaty we signed in 1989.
Dr. Somerville: It is quite appropriate to use that, because I think that the Convention on the Rights of the Child expresses in a fairly succinct form the collected wisdom of millennia of human experience with regard to parents and children, and added to it is a late 20th century sensitivity to articulating human rights and how it should be if we could always achieve what we most want to achieve with respect to human rights.
I would very much urge you not to abandon what I would call ancient wisdom in modern form that we have had to develop because of our new technologies. One of the other areas that I am working in is called transhumanism. There is a group, some of them highly respectable people, who think we are on our way to what they call a post-human future, that humans are obsolete models in terms of biology, and that in the future we will become cyborgs, who are part human, part machine, and eventually we may be replaced entirely. There is a new book out by Rodney Brooks, the head of the artificial intelligence laboratory at MIT. He is no small fry in this area. He called the book Flesh and Machines. He argues that in the future robots may be entitled to ``robot rights'' that will trump human rights.
I think we have to be careful when dealing with this technology. The powers it gives us are unprecedented in terms of both the evolution of life and human history. Scientists tell us that humans today are the result of about 850 million years of evolution. Up until four or five years ago, that is who we were and who our children would be and it went on that way. Now we hold power over human life itself in the collective palm of our hand, and that is a power that no other humans ever had. It is completely amazing.
We have to use a precautionary principle. We need to go back to the International Convention on the Rights of the Child and ask what wisdom crystallized over millennia. When I read this, these are the principles I would want you to apply.
Senator Kinsella: Is there any merit in the counterargument with regard to the post-humanism school, that more of a balance between the biological and the social is required?
Dr. Somerville: I have not been explicit here. When I say ``biological,'' there is a new field called epigenetics, which is the interaction of biological, cultural and social aspects. In other words, our genes are modified by our social and cultural experiences.
For instance, we now know that if baby rats are not licked within a short, critical period of time, they cannot nurture their own babies. They have a gene that has to be activated by their mother licking them.
Senator Kinsella: However, critical to the epigenetic principle is time. Is time in real space critical to humans at whatever stage of growth? Is there a definition of ``family'' or ``child-parent relations'' that is not contextualized in the order of time?
I have always had difficulty, from a human rights analysis perspective, understanding how someone, being the only person on an island, says ``This is my pen.'' There is no one else there to make that proposition a reasonable one.
Dr. Somerville: We could have a philosophical discussion about that.
Senator Kinsella: Is it critical for that philosophical discussion to occur for us to be able to capture the full meaning of the new horizons you have told us are being explored and to speak of human rights in a reasonable way?
Dr. Somerville: In other words, unless one puts people's rights in context, one cannot say whether or not they have rights. That is what I understand from your question.
Senator Kinsella: That is one of my questions.
Dr. Somerville: I disagree that rights only exist in context. That is why I argue that these rights are not conferred on you from an outside source. They are integral to you. They are intrinsic entities that come to you simply from the fact that you are human. However, because we all have human rights, they require you to interact in certain ways and be restricted in interacting in certain ways, both with other humans and, I would argue, with all life and our planet.
Perhaps this is where we differ. I am urging you to adopt a basic presumption in favour of the natural, work primarily from that and then see what else you want to change because of the new knowledge we have, if that is relevant. That is quite different from the idea that we have a clean slate, we can do this now, so why should we not do it. If somebody wants to stop us from doing it, they have the burden of showing us why we should not.
There is a school of thought in new reproductive technologies that comes out of Texas. John Robertson, a distinguished professor, is one of the main spokespersons on the issue. That school of thought is based on what they call absolute rights to reproductive autonomy, which means it is no one's business but mine what I do in terms of reproduction. It is certainly not the state's business or an area where there should be any law.
Those people say, ``Well, if you want make a half human, half machine or clone yourself, you can do it.'' I suppose they would probably prohibit something that was too extreme. That is the other alternative starting presumption. I am urging you to say no to that. This grounding in the natural is extremely important for future biological and cultural aspects of human life and respect for it, including legal and ethical reality.
We have to realize that when we make these statements, particularly about parents and children and their reciprocal rights, we are dealing with the most fundamental values on which a society is based. Humans have always formed their most important values around the two great events of every human life — birth and death. I suggest it is no accident that currently we are engaging in extensive debate around the values that should surround birth in light of these new technologies.
There has already been a bill presented in the House of Commons dealing with euthanasia. Those two issues are related. They are the end pillars that overarch other values to form our fundamental collection of values that we buy into in order to form a society. That is what Canada is looking at — its deepest shared value base.
Senator Nancy Ruth: I do not think the word ``everyone'' shows up anywhere in the Charter. It says rights are given to male and female persons, rights are guaranteed, but it does not use the word ``everyone.''
Dr. Somerville: In section 7 it states: ``Everyone has the right to life, liberty and security...''
Senator Nancy Ruth: It may state that, but in terms of equality rights in section 28, the word ``everyone'' is not used. I do not have the Charter with me.
Does the Assisted Human Reproduction Act currently address making embryos from two ova, two sperm, adult stem cells or the use of fetal genetic material?
Dr. Somerville: No.
Senator Nancy Ruth: Has there been any broader public discussion about these technologies? Why exclude the use of genetic material from aborted fetuses, implying it might be tampering with the biological material?
MS. Somerville: There was a cartoon in the newspaper recently showing a young couple meeting for the first time. I think they were taking part in speed dating. The young woman said to the young man: ``As a matter of fact, my mother was a fetus.'' All women in this room had the maximum number of ova we ever had in our lives when we were a five- month-old fetus. It goes downhill from that point on.
The ethical concern is you have a child born whose mother was never born because she was aborted. We have to listen to reason and to other ways of human knowing.
In ethics we talk about a yuck factor. That is when you tell somebody something that raises ethical issues and they say, ``Yuck.'' It is an intuitive moral reaction. When we investigate why they had that reaction, often there is a deep ethical problem that has not yet come into consciousness; at that time, they had not been able to work out why they said ``Yuck.''
It is wrong to make a child whose mother was never allowed to be born.
Senator Munson: Do you believe in a children's commissioner? This committee responded to recommendations from the UN Committee on the Rights of the Child and proposed that Parliament establish a children's commissioner. Is it a good idea to have an independent commissioner?
Ms. Ross: An independent commissioner would be a good idea. There are children's advocates in various provinces and they have been helpful. A children's commissioner would be excellent. We have often wondered who to talk to, which senators or members of Parliaments are concerned or interested and who can be approached on various issues.
Senator Munson: Where would Aboriginal children go?
Ms. Ross: They are children as well.
Senator Munson: Yes, but they are in different jurisdictions.
However, in principle, you agree with this recommendation.
Ms. Ross: I definitely agree. I hope that it is acted upon.
The Chairman: I wish to thank Dr. Margaret Somerville and Ms. Elspeth Ross, who have spoken to us about the perspectives of children.
You have taken us much further than we anticipated going when we first entered the realm of this study. We were looking at the UN Convention on the Rights of the Child. As you have both expressed, we must broaden our scope to look at modern day children and their needs.
You have underscored that we have not enacted legislation that takes children fully into account. We often enact legislation from the adult point of view. You have reminded us of that, plus many other things we will take under advisement.
Thank you for your attendance.
Honourable senators, we will now hear from Ms. Claudette Deschênes, Vice-President, Canada Border Services Agency; and Mr. Brian Grant, Director General, International and Intergovernmental Relations, Citizenship and Immigration Canada. Mr. Grant will introduce his colleagues.
Welcome to the Standing Senate Committee on Human Rights. We are interested in how the UN Convention on the Rights of the Child is taken into account in our work.
Please proceed, Ms. Deschênes.
Claudette Deschênes, Vice-President, Enforcement Branch, Canada Border Services Agency: Madam Chairman, on behalf of the Canada Border Services Agency, I am pleased to appear before the committee to discuss issues surrounding Canada's international obligations in regard to the rights and freedoms of children.
[Translation]
I am delighted to be able to help the committee gain a better understanding of our policies with respect to the detention of minors and unaccompanied minors who turn up at our border entry points, as well as of our efforts to combat the trafficking of children. I will be happy to answer your questions on the subject.
[English]
The Canada Border Services Agency plays an important role in Canada's effort to combat trafficking in persons, especially women and children. We are an active participant in the Our Missing Children program, which has reunited over 4,000 missing or abducted children with their families since it began.
CBSA officers are fully alert to children who need protection and pay extra attention to children as they enter Canada. Whether they arrive accompanied or alone, whenever there are concerns about children's welfare, their relationship with the adult who may be accompanying them, or the purpose for which they have arrived in Canada, it is mandatory to refer them for a detailed immigration secondary examination. This additional scrutiny is for the sole purpose of ensuring the safety of the child.
Minors are detained only as a last resort, taking into account the availability of alternatives to detention, the anticipated length of the detention, the risk of continued control by human smugglers or traffickers and the type of detention facility. The decision to detain is never made without consideration of the best interests of the child. I will be pleased to discuss our efforts against trafficking in children and our policies regarding detention of minors in more detail once Mr. Grant, of Citizenship and Immigration Canada, has spoken.
First, I would like to address two incidents that took place recently in Toronto because they have been the subject of a great deal of media attention. I refer to the removal of minors from schools.
I want to say clearly that it has never been CBSA's policy to systematically contact schools to facilitate the arrest of parents of children attending school. In practice, schools were sometimes contacted to obtain a residential address for a family, subject to outstanding warrants, or, at the request of the parent or guardian, to reunite the family. Both examples, to obtain a residential address and to reunite a family at the mother's request, occurred recently and have been subject to media coverage. I can confirm that after reviewing these cases, the CBSA has clarified its policy in writing. Officers are not to enter schools or access school information for the purpose of enforcing the Immigration and Refugee Protection Act except in extraordinary circumstances.
In these extraordinary circumstances, approval must be sought from headquarters, the enforcement branch that I lead. CBSA officials will not go to a school except in the following circumstances: at the request of the parent, the legal guardian or a school official for the purpose of family reunification, or for reasons of national security or serious criminality, and only then with the prior approval of a senior CBSA official. CBSA officials will not access school records except for reasons of national security or serious criminality, and only then with the prior approval of senior CBSA officials in my branch.
We at CBSA take Canada's international obligations to children seriously. We strive every day to uphold our responsibility in respecting the best interests of the child when making decisions. We do not always get it absolutely right, but we strive to do so.
[Translation]
I will now be happy to answer your questions.
[English]
The Chairman: Thank you.
Mr. Grant, the floor is yours.
Brian Grant, Director General, International and Intergovernmental Relations, Citizenship and Immigration Canada: Honourable senators, I would like to thank you for the opportunity to appear before you today. I am joined by two of my departmental colleagues. They are Micheline Aucoin, the Director General of the Refugees Branch at CIC; and Mark Davidson, who is the Director of Citizenship.
I am well aware from your earlier work that you have extensive knowledge of and expertise on issues that pertain to children and Canada's international obligations in this regard. Thus I will make some simple points that draw from your previous questioning and also pertain to the areas of responsibility that CIC has.
First, I am pleased to inform you that our minister has tabled this afternoon in the House of Commons amendments to the Citizenship Act that will facilitate the granting of citizenship to children adopted overseas by Canadian parents. The proposed legislation will allow children adopted abroad by Canadian citizens to obtain Canadian citizenship without having to become permanent residents. As a result, the difference in treatment between children adopted abroad and children born abroad of a Canadian parent will be minimized.
Second, CIC is working toward a comprehensive policy on resettling separated minors. Ultimately, the policy will depend on the availability of persons who can become adoptive parents or legal guardians and can ensure the safety and protection of the minor until that minor is of legal age.
As part of this work, a guardianship protocol has been developed for de facto and consanguineous minors who are being resettled in Canada. The guardianship protocol puts in place procedures for the adult in a de facto or a consanguineous situation to be informed of the importance of taking on legal guardianship in order to ensure the care and protection of minors until they reach the age of majority in the province in which they reside.
The protocol stipulates that minors be consulted and given the opportunity to express their views about the arrangements being made.
Third, to facilitate the rapid reunification of resettled refugees, the Refugee and Humanitarian Resettlement Program allows for the concurrent processing of refugee family members who are residing in different locations.
Further, since June 2002, protected persons in Canada may become permanent residents prior to the completion of the assessment of dependants abroad. Once the protected person is a permanent resident, therefore, applications by family members can be and are processed more expeditiously.
Fourth, nuclear family members, including dependent children, are given priority processing for reunification. The department has a service standard of six months in these cases.
Fifth, the act recognizes that the best interests of the child are of primary consideration and this is reflected in policy and operational guidelines. For example, CIC issued enhanced policy guidelines in 2005 on the principle of best interests of the child, and officers have received training on these guidelines.
Sixth, the department has finalized measures that will strengthen Canada's response to the unique needs of all victims of human trafficking, including children. These measures include guidelines that will assist immigration officers in issuing short-term temporary resident permits to victims of trafficking in persons. These measures also exempt victims from the processing fee for a temporary resident permit and give access to the Interim Federal Health Program to ensure the victims of trafficking receive the medical attention they need.
Finally, I would like to mention that CIC's settlement programs contain components that help immigrant children adjust to Canadian society. As examples, the Language Instruction for Newcomers to Canada Program, or the LINC Program, which provides language training to adult immigrants, and the Enhanced Language Training Initiative both have child-minding components that provide a safe environment for children while their parents are receiving training. The language skills of children may also be enhanced in the child-minding environment.
Further, in order to facilitate the adjustment of immigrant and visible minority children to Canadian society and the school system, the Settlement Workers in Schools initiative, which is a partnership between CIC and some school boards, connects families to settlement services in the community, thereby helping to build bridges between parents, students, schools, and the community.
Those are my opening remarks. Of course, we are open to any questions you may have.
Senator Munson: The amendments you were talking about, what was the problem before such that they had to become permanent residents? How was that a problem? You talked about the proposed legislation allowed children adopted abroad by Canadian citizens to obtain Canadian citizenship without first having to become permanent residents. Was there a timeline there?
Mr. Davidson: The bill that has been tabled in the House of Commons this afternoon by the minister is Bill C-14, which is intended to eliminate that requirement that children adopted by Canadian citizens abroad have to first apply for permanent residency. The purpose of the bill is to minimize, as much as possible, the distinction made in the citizenship context between children who are born to Canadian citizens abroad and children who are adopted by Canadian citizens abroad. The feeling was that it is inappropriate that children adopted abroad had to go through that extra step of applying for permanent resident status and then only being able to apply for citizenship once they returned to Canada as permanent residents. The bill will make it easier for them to be granted citizenship directly.
Senator Munson: Was it getting in the way of families trying to adopt children abroad?
Mr. Davidson: There were two issues, and we can think of it as two groups of adopted children; one where, as I described, the individuals were coming back to Canada. In that case, as I said, they had to go through the immigration process and then only after that could they apply for citizenship. The other group are children who are adopted by Canadian citizens who are resident overseas and not intending to come back to Canada. Those individuals could not use the immigration process because it is only intended for individuals who are planning on returning to Canada permanently.
In that scenario, where a Canadian citizen is living overseas and is adopting, at present they have to apply through an interim measure that exists in the Citizenship Act, which is a special discretionary grant of citizenship by the Governor-in-Council. Again, it was felt that that special discretionary mechanism sets up an inappropriate distinction between adopted and natural-born children.
Senator Munson: On a personal level, we still had a difficult time telling our son, who is now 21 and who was born abroad, that he was an alien living in our house for a long period, because there was documentation to that effect. Anyway, we worked it all out.
Can you tell us about the statistics concerning trafficking in children in and through Canada? Is it a big issue, a major problem?
Mr. Grant: It is an issue that we are of course very vigilant about. There have been reports in the media. There have been reports from members of civil society. We follow up on those and ask for more information so either CIC or the RCMP can take steps. To date, there is no evidence of any cases of trafficking in children in Canada.
Senator Munson: Is there no evidence?
Mr. Grant: No evidence of any specific cases. As I say, though, we remain vigilant.
The Chairman: Have there been no cases of trafficking of children?
Mr. Grant: We have no evidence of trafficking in children. We have asked for further information to follow up on what are basically anecdotal reports, and no information has been provided to us.
The Chairman: Have unaccompanied children come to Canada in the last year? I do not know the time frame you are using, so I will say in the last year. You say there were no trafficked children, say in the last year. Were there any unaccompanied children who came to Canada?
Ms. Deschênes: We do not have a lot of numbers. The numbers that we have of arriving at a port of entry are usually travelling to reunite with families in Canada. We would not consider that to be trafficking. Yes, there have been children either unaccompanied or accompanied and travelling on a passport that is not theirs, but it was for the purpose of reuniting them with people who are already in Canada. We would not consider that to be trafficking.
The Chairman: We have heard some evidence here, and certainly I have received evidence elsewhere, that there is a difficulty when you have young children — and 18 is the criterion under the convention on the rights of the child — for example, 17-year-old women arriving who are not treated in the same way as a 10-year-old or a 12-year-old. Do you make any distinction on age or gender?
Micheline Aucoin, Director General, Refugees Branch, Citizenship and Immigration Canada: From a CIC or CBSA perspective no, because our definition is under 18, and therefore our officers at the border or the CIC officers in local CIC offices are trained to deal with and to interview children. The definition is until age 18.
Now, once they leave the CBSA or the CIC, obviously child protection legislation or children's welfare is a provincial jurisdiction and different provinces have different criteria in terms of age. It goes, I believe, from 16 to 19.
Ms. Deschênes: I would just add that clearly if someone is 17 — having two daughters who are 15 and 18 and sometimes appear like they are 25 — there can be issues at ports of entry. I will grant you that sometimes, officers may think they are not dealing with a minor. Obviously, certain questions may be asked in trying to figure out whether we are really dealing with a 17-year-old, or an adult who is pretending to be a minor. We try to ensure that our staff are trained to be cognizant of the fact that even if they have a suspicion, it does not mean it is reality, so they should be working on the presumption that the person is 17 and therefore questioning them as a minor.
Senator Kinsella: What are your respective ministries' definitions of ``human trafficking?''
Mr. Grant: The definition we use is from the protocol to the transnational organized crime convention.
Senator Kinsella: Which is?
Mr. Grant: I do not have it in front of me.
Senator Kinsella: Explain it in your own words. What are we dealing with here?
Mr. Grant: We are dealing with people who are brought across international borders and there is an element of exploitation involved.
Senator Kinsella: Is your testimony to this committee that there are no cases in Canada, so far as you know?
Mr. Grant: We have no evidence of cases of children being trafficked.
Senator Kinsella: Are there no persons under the age of 18 being brought into Canada for purposes of human trafficking?
Mr. Grant: What I said is that we have no evidence of any cases that we can follow up.
Senator Kinsella: Whose responsibility is it to apprehend such cases, should they exist?
Mr. Grant: It would be law enforcement officers.
Senator Kinsella: Would that be the RCMP?
Mr. Grant: RCMP, CBSA at the ports.
Senator Kinsella: I just ask the question because you are here. The Senate was very interested last year in putting forward and successfully enacting legislation dealing with the lost children from a number of years ago. Has the machinery been put in place to facilitate the processing of those who have claimed their Canadian citizenship?
Mr. Davidson: Senator, you are referring to Bill S-2, which was passed by Parliament last spring and made an amendment to section 11 of the Citizenship Act to allow individuals who had lost their citizenship as a minor child under the former 1947 act to apply for resumption of citizenship.
Those individuals have been able to apply since that bill received Royal Assent last spring. We are aware of something in the order of 90 applications that have been processed since then. They are being processed. A new application kit is now publicly available — it is on our website — that allows individuals to apply for that. Indeed, we have been processing and positively concluding cases since that bill received Royal Assent.
Senator Dallaire: I have a few technical questions surrounding the media activity in Toronto. You indicate that the staff would not go into a school unless there was an exceptional set of circumstances. The events that were reported were purely of staff going into the principal's office to get information, and there was no contact made with the students; is that correct?
Ms. Deschênes: That is correct in both cases. In the first case, we had detained the mother. She asked that we go and pick up her children, and that was done through the principal's office. In the second case, we went to the principal's office looking for an address, and it has now been clearly indicated that would not happen again.
Senator Dallaire: I am thinking of the exceptional circumstance that could happen again. Were those people in uniform or in civilian clothes?
Ms. Deschênes: I do not know that. Again, we would use the same type of protocol, in an exceptional case, as a policeman going into a school looking for someone. We would go to the authorities and have them find the child and bring that child to the principal's office. For example, if there was a national security issue and we had to find the children or identify the parent through the children, we would use that type of protocol. We would try to minimize knowledge of the presence of the officers. Again, even before the policy was clarified — it had been used rarely — we wanted to ensure that people understood that this was not a common practice.
Senator Dallaire: We are in exceptional times. Since 9/11, there has been an incredible amount of panic about how to defeat the threat. We have done everything from fiddling with our civil liberties to throwing away conventions that have been longstanding. I would contend that we are fiddling on the margins of human rights in North America, in particular in regards to national security. The threat is not disappearing, and the term ``national security'' is used far more prevalently now than it was during the Cold War, which is rather interesting.
Coming to the specifics, I am hard-pressed to consider, in matters of national security, the idea of going after the children to get at the parents, and in particular, having to go after the children in school. Going after the kids in their home under the context of the community is one thing. Word spreads, and if there is any place where we try to continue to build a sense of security, from bullying all the way through to stealing, vandalism and so on, it is the school. In some circumstances, it is the only place where the kids feel protected because their homes are not protected.
It is absolutely impossible for me to even imagine an enforcement capability coming to get kids out of a school in this country. They do that in developing countries, where they are ripping kids out of school to get them to be child soldiers. I just cannot see us wanting to even entertain the possibility of introducing that option in our school system.
Ms. Deschênes: Senator, CBSA agrees with you perfectly. As you are setting out a policy, however, you do want to have a basis for an exception if something has happened. In those cases, the officers would come to headquarters, and the manager who would make the determination would likely be me. Having been involved in many national security cases in the last five years, I can tell you that we do not anticipate using that provision. I think we would have been less than forthright if we had not put it forward as a possibility, should the case deserve it.
Senator Dallaire: I will just conclude on that point by saying that I would be on the other side. I am certainly used to looking at worst-case scenarios, but I would contend that the introduction of that option at a time when we are trying to find a solution is not conducive to a positive application of the policy. I do not think we should have even looked at the possibility that the school was an area where you ultimately may have to go, certainly on the national security side, and it is those exceptional cases that blow the whole thing apart, not the normal cases. I think maybe you have given yourself more of a duty than you should have wanted to acquire in accomplishing that.
Going to the next point, the detention scenario, what specific training have the officers had in regard to handling children and what are the parameters of the detention? What are the actual physical methods? That they are not locked up, I take for granted, but we have seen cases in Quebec City, for example, where people were held in the port, which is not necessarily the nicest place. What is the training and what are the specifics in regards to the handling of children?
Ms. Deschênes: I would emphasize that the first training that officers get is that detention should be a last resort, and we focus on that. Although we do not have the statistics to describe every case, the great majority of cases are children being detained with their parents. Either they have all arrived together or they are all being prepared to leave Canada. Certainly the issue of not separating the family unit comes to mind. Most of the detentions of children are for less than six days, so a short period. In a large majority of, if not all, cases, they are detained in immigration holding-type centres. Yes, we will agree that none of those are necessarily the best facilities, but we try to keep them in as good an environment as possible. Detention is used very rarely for minors.
[Translation]
Senator Dallaire: Does the Agency provide special training to officers to deal with children, or is this all part of their normal training procedures?
Ms. Deschênes: In our view, the interests of children should always be a primary consideration of ours. The Agency is currently reviewing its training procedures with a view to ensuring that all employees have a clear understanding of their responsibilities in terms of enforcing the act as well as of our international obligations in the field of human rights. I would not say that we are all perfect, but we do take these matters into consideration at our border entry points.
Senator Dallaire: You say you are currently reviewing existing procedures. Are you also reviewing your procedures for dealing with children who are traumatized by these situations?
Ms. Deschênes: Yes.
Senator Dallaire: Do you deal with children from war-torn countries who are seeking refugee status?
Ms. Aucoin: Yes, but the statistics are not accurate. For instance, statistics have been compiled on principal applicants under the age of 18 years. However, in the vast majority of these cases, the child is accompanied by his or her parents.
The system is rather complex. For example, if the parents are of a certain nationality, and the child, of another, their claim for refugee status will be against different countries. The child would then automatically be in a situation where he or she is applying as a principal applicant.
According to the statistics compiled on principal applicants who are minors, the vast majority of minors who arrive at our entry points are either accompanied by their parents or by a legal guardian. Or, they are with other family members. However, there are nonetheless a very small number of children under the age of 18 who arrive unaccompanied and who apply for refugee status.
Senator Dallaire: Do Agency employees receive special training or follow any special procedures when dealing with these minors who are probably already quite traumatized?
Ms. Aucoin: Yes, CIC and CBSA officers working at border entry points are trained in the techniques to employ when interviewing children. Different techniques are used to interview adults and children, because children have a different outlook on things. Therefore, officers receive special training.
And finally, when they go before the Immigration and Refugee Board, or IRB, to have their refugee claim reviewed, the latter must appoint someone to assist the minor with his refugee claim.
Senator Dallaire: The IRB appoints someone?
Ms. Aucoin: Yes. I believe the next person scheduled to address the committee is Paul Aterman from the IRB. He will be able to provide you with additional details about the refugee determination process.
[English]
Senator Munson: You have opened up a few other questions. You cannot tell us how many children there are in detention centres today, with or without their families. Is that correct?
Ms. Deschênes: What I meant to say is that the statistics on how long individual cases take and the specifics of those cases are difficult to assess. What I can tell you, for example, is that in April of this year, 10 minors were detained nationally. Nine of them were accompanied and one of them was unaccompanied.
Last year, in 2005-06, 715 minors were detained. Again, I cannot tell you for how long, but the great majority, over 70 per cent, were for less than six days. Of those, 620 were accompanied and 95 were unaccompanied.
Senator Munson: Do we operate any detention centres abroad?
Ms. Deschênes: No. Also, the great majority of those who were detained — 555 of the 715 — were in Ontario, and likely would have been in the Greater Toronto Area.
Senator Munson: I am curious about the training that you talked about. Is there training with education, and what kind of counselling is there? Also, are there recreation programs for these people? How does it all work? I understand there has been some criticism in the past.
Ms. Deschênes: If children will be detained for a period longer than six or seven days, we will make education facilities available to them. Certainly, officers are trained in terms of dealing with children. Again, our focus is on unaccompanied minors, because when we are talking about accompanied minors, we are probably focused on the parents, who are dealing with their children.
Officers are trained to understand that children might respond to questions differently; that you cannot use big words and not explain them; that you need to show respect for kids because they may already be feeling quite vulnerable. A lot of that training goes on.
We want to ensure that as we have created the CBSA, we have not lost some of the training that might have been given from the CIC perspective of the program to ensure that officers understand their full responsibility.
The Chairman: I want to follow up with some supplementary questions. I would like you to define what you mean by ``detention centre.'' Are you talking about a lock and key facility specially built for these purposes? You say sometimes children are in detention with their parents. If they are not with their parents, are they with other adults or exclusively with children?
Ms. Deschênes: We try to keep the children separate. It is not always possible to do that. The immigration holding centres are normally places that you cannot come in and out of. There will be a security guard at the front door and you will be able to lock yourself in. However, you do normally get to walk around the centre — both in Montreal and in Toronto, for example.
The Chairman: So it is not the hotels that we have heard of?
Ms. Deschênes: In Toronto, it would be hotel-type accommodation. In Laval, it is a detention centre, but certainly you can move around.
The Chairman: You say you try to separate them, but you do not always.
Ms. Deschênes: Again, some people are detained because they arrive on a late flight and there is no officer available. You would have to keep a child, for example, for three or four or five hours, until 3 a.m., to do the examination. Therefore, you might send people into detention and bring them back the next morning.
What we normally do with an unaccompanied minor is call the provincial social organizations, but that does not always work out.
The Chairman: The statistics that you quoted are for the children kept in detention by your service, not if they are then released and come under provincial responsibility — the immigrants or refugees. They could be detained then also; is that right?
Ms. Deschênes: I do not know if I can answer that. I would have to check.
The Chairman: You have given us a definition of ``national security.'' I assume you are following the definitions within the national security system. What do you mean when you say that you detain children for ``extraordinary circumstances of national security and serious criminality?''
Ms. Deschênes: For both of those definitions, we would use what is in the Immigration and Refugee Protection Act. ``National security'' would normally be tied to terrorism, that type of thing. ``Serious criminality'' would normally be organized crime. Again, it would be only where we felt that we really had to do that. I would assume that if it is a national security case, we would have partners like the RCMP and CSIS who might be able to tell us more about where to find the parents.
Senator Kinsella: I am curious about who is legally in loco parentis when these children are in detention.
Ms. Deschênes: Now you are using big words, so tell me what you mean.
Senator Kinsella: I will give you an example. Say a child who is detained by you requires medical intervention. Is permission sought of the adult who is travelling with the child, or does the department act in the place of the parent?
Ms. Deschênes: If the parent is detained with the child, the parent would make that call.
Senator Kinsella: Are there cases where the child is not detained with a parent?
Ms. Deschênes: Only if the child has arrived unaccompanied. We would never detain a child separately from a parent who arrived at the same time, or whom we are seeking to remove at the same time. We would never detain a child for minimal reasons. For the best interests of the child, we would always try to release them. Most of the cases we detain are because the parents want the child to be with them and not with someone else on the outside.
Senator Kinsella: Therefore, generally speaking, the parent still has control over the child?
Ms. Deschênes: That is correct.
Senator Nancy Ruth: I wanted to follow up on Senator Dallaire's questions about the training of officers and how refugee children would be treated.
I am asking this question from a gender perspective. How do officers deal with issues that particularly pertain to female children, such as rape, sexual assault, genital mutilation and so on? A secondary question; and I understand the numbers are pretty small, but of the children who apply for refugee status, is there a difference in the success rate of those who get in and those who do not between the genders?
Ms. Aucoin: To your second question, I do not have an answer. Mr. Aterman, from the IRB, may know; however, if not, we can get you the statistics.
On your first question, with respect to training, yes, officers are trained to deal with gender issues and with cultural issues as well when they interview children and adults.
You are sometimes dealing with people who come with serious trauma and obviously need specialized care. This is where our officers, either the CBSA officers at the point of entry or the local CIC office, would refer children, unaccompanied minors, to the appropriate provincial welfare authorities.
Senator Peterson: You indicated that in certain extraordinary circumstances you still may enter schools. How would that decision be made and who would have to sign off on it?
Ms. Deschênes: If a parent asks us to pick up the children, we do so and bring the parent with us to the school. In a case of national security or organized crime, the request would come to headquarters and an official would make a decision based on the information explaining why it is critical to go to the school. At this time, we cannot think of a lot of exceptions that would allow us to do that, but we felt from a policy perspective that we needed to leave that window open.
Senator Hubley: I wondered, Mr. Grant, if you might expand on ``protected persons.'' Do you mean minors in that instance? It is the third item on page 4 of your presentation — ``protected persons in Canada may become permanent residents prior to the completion...'' Who falls into that category of ``protected person?''
Ms. Aucoin: That paragraph covers two groups of people. The refugee resettlement program includes refugees abroad whom we resettle in Canada. Sometimes they all live together, for instance, in a refugee camp, as a family unit, so in that sense family reunification is relatively easy. The family members are processed together and they travel as one group to Canada.
In some cases there are not together. Family members may be in different camps. We do not want to resettle just part of a family, so we process these people in different places, and sometimes in different countries. They will not necessarily travel to Canada together, but we try to process them at the same time.
In some cases, families in a refugee camp do not know the whereabouts of other family members. They may have departed their country quickly and do not know where other family members are. When the family travels to Canada and we do not know the whereabouts of the other family members, but they have been identified by the family, we have a one-year window in which to find them. If they are found within the time period, they are processed and can enter Canada easily.
``Protected persons'' are people who came to Canada and made a refugee claim here. When they make their application to become permanent residents and they want to include family members abroad, it used to be people could not have permanent residency until all the family members had been processed. That was changed in 2002.
The Chairman: We have run over our time, so I would like to thank all the witnesses for coming forward and sharing this information.
As we continue our study, we may have more questions, and I would invite any of the senators who did not get a second round to put forward their questions and we can get answers in written form.
One I will put now. We never touched on how you define a ``parent.'' Increasingly, around the world, there are separated parents, different family units and structures, so I would want to know from both parties: How do you identify that you are working with the correct person as the parent of a child and what process do you go through to ensure that it is the custodial parent?
If you could answer that in writing, it would be helpful.
We will hear now from the third panel of witnesses before us this afternoon. I welcome Mr. Paul Aterman, from the Immigration and Refugee Board of Canada; and, from the Canadian International Development Agency, Mr. Stephen Wallace, Mr. Michael Montgomery and Ms. Amy Baker.
Paul Aterman, Director General, Operations, Immigration and Refugee Board of Canada: Thank you, Madam Chairman. I would like to give the committee an overview of the work of the IRB, after which I will try to explain the manner in which we do our work when children are involved. I would like to advise that our objective is to ensure that every child who comes before the IRB is treated in a manner that is simple, quick and fair. The board is the largest, administrative, independent tribunal in Canada. In any given year, we make between 40,000 and 60,000 quasi-judicial decisions that touch on core human rights, such as the right to the security of the person, the right to family unity and the right to liberty.
The IRB is divided into three divisions, the largest being the Refugee Protection Division, which deals with about 80 per cent of the work. Its mandate is to determine refugee status when claims are made within Canada. The second is the Immigration Division, which deals with determinations of admissibility for those believed to be inadmissible to or removable from Canada. It is also responsible for reviewing detention of persons detained under the Immigration Act. The third is the Immigration Appeal Division. Its mandate is to make determinations in respect of family sponsorship appeals, appeals by permanent residents facing deportation and appeals related to the loss of permanent status. That is the jurisdiction of the IRB.
[Translation]
As an administrative tribunal, the Board seeks to deliver justice that is simple, quick and fair. The majority of people who come before us are not familiar with Canadian institutions. They may have limited command of our official languages and we are charged with making very important decisions about their lives. We strive to make our proceedings accessible so that the people who come before us can understand our process, with or without a lawyer. We pay particular attention to vulnerable persons appearing before us, including, of course, children.
[English]
The way in which children's issues come before the IRB is as follows: Children may make refugee claims before the Refugee Protection Division. In the large majority of instances, they are accompanied by an adult. In a small number of cases, they are unaccompanied. Those cases are of particular concern to us, and I will deal with them shortly.
The Immigration Division may determine whether children are admissible to Canada and whether they are removable from Canada. The division also deals with detention reviews involving children. There are only a small number of cases where children are not accompanied by an adult. As with cases before the Refugee Protection Division, the majority of children are accompanied by an adult.
The Immigration Appeal Division does not have children appearing before it as a party to the proceedings in the majority of instances. However, the interests of children can be affected by decisions of the Immigration Appeal Division. An obvious example of that is when there are family sponsorship issues and the parents are separated from the children. The interests of the children are engaged although the parents are parties to the proceeding. If a parent is facing removal from Canada, that can affect the children, but they are not parties to the proceedings.
The issue of how the board deals with its international obligations can be divided into two parts. One is procedural and the other is substantive. ``Procedural'' refers to the way in which we manage the cases when children are involved. ``Substantive'' refers to the substance of decisions where children are involved; and it is important to separate the two. In some areas, the IRB has no authority to look at the case differently simply because children are involved. However, we can process the case differently where children are involved.
In terms of procedure, the committee heard briefly from the previous panel that when children appear before the IRB, a designated representative can be appointed because the children do not have the capacity to represent themselves. The IRB appoints a designated representative, and in most instances, that will be the parent. In cases where the child is unaccompanied or we have concerns about the suitability of the parent acting as the designated representative, the board will appoint an independent representative, whether a lawyer or a worker from a social services agency.
The role of designated representatives is to act in the best interests of the child with respect to the proceedings of the IRB. Representatives are not meant to deal with other issues concerning the child, such as housing or education. Their mandate is limited to assisting the child with the board's proceedings. That is the role of the designated representative.
I will speak to the scheduling of cases where a child is involved.
[Translation]
Where a child is unaccompanied, the case is given scheduling priority. We want to reduce the anxiety that a child may experience in waiting for a decision.
With respect to the conduct of hearings, decision-makers are trained to deal sensitively with children in hearings. This includes explaining the process to a child who is the subject of the hearing, questioning in a way which does not intimidate the child and weighing the evidence of children in a manner that takes into account the difficulty a child may have in testifying.
Regarding policy instruments, the approach to these procedural issues is set out in the Guidelines on Child Refugee Claimants.
[English]
I believe a copy of those guidelines was forwarded to the committee. You may wish to look at those.
[Translation]
Other policy instruments of the Board also deal with procedural issues in relation to children. For example, we will not conduct videoconference hearings for refugee claims involving unaccompanied children, as this is not a suitable approach for such cases.
[English]
I will turn from the procedural to the substantive questions. Here, in terms of refugee issues, the definition of ``refugee status'' is set out in international instruments. It is the Geneva Convention for Refugees and also the convention against torture. Canada has also incorporated the notion of a ``protected person'' in the definition. Whether you are looking at Canadian or international law, the criteria are the same whether you are a child or an adult. In other words, there is not a different set of substantive criteria for determining whether you are a refugee. Having said that, as I have indicated before, the way in which the case may be treated if a child is involved is different in terms of how evidence is evaluated.
As far as the substantive aspects of children in detention are concerned, the Immigration Division is guided by the provisions of the act and the act is clear in indicating that a minor child shall be detained as a measure of last resort. The approach that Immigration Division decision makers take in that regard is to look at alternatives to detention wherever possible. They look at the suitability of the conditions under which children are being detained. Those are factors that weigh in whether they will order detention. There are some instances where decision makers find that, as regrettable as it may be, it is in children's best interests to detain them if they have concerns about releasing them into circumstances where they may be at even greater risk. That is an issue that comes up before the division.
Finally, in the relation to the work of the Immigration Appeal Division, children are not parties in those appeals. Frequently, however, the interests of the child are relevant to an exercise of discretion by an Immigration Appeal Division decision maker. Where there is a question of family separation, the best interests of the child is a factor weighed by decision makers in determining whether someone may be allowed to come to Canada in a sponsorship case. Similarly, in a case involving deportation, the best interests of the child is a factor that a decision maker will weigh in determining whether or not to order a parent deported from Canada.
In terms of training at the board, we focus on training members of all three divisions on the concept of the best interests of the child during their initial training. They have a three-week orientation in which there are segments devoted to that training in international instruments, including the UN Convention on the Rights of the Child.
For the most part, the training at the initial stage focuses on these questions of procedure, because that is where the UN Convention on the Rights of the Child has its most direct application to the work of the board. They are trained on how they question children, how to conduct a hearing involving children, and the law relating to the appointment of a designated representative. As court decisions are released that affect the interests of children, we give them jurisprudence updates to ensure that they are keeping apprised of the law.
That is an overview of the way in which the board deals with children and our international obligations.
Stephen Wallace, Vice-President, Policy Branch, Canadian International Development Agency: Thank you very much. It is a pleasure to be here. I wish to introduce Mr. Montgomery, our senior adviser on children's rights, who is with me this evening.
[Translation]
We have prepared some notes which will be distributed to you.
[English]
The notes deal with three issues: First, what is our track record in this area; second, what are the kinds of programming approaches we take in dealing with children's rights; and third, what do we see as we move forward? I will separate my remarks into three sections.
With respect to the first section, we have had a long track record as a country on children's rights, from the beginning, in helping to bring the convention into being and co-hosting the first World Summit of Children, 1990. I believe Canada established a platform here that has been important. Moving forward to the year 2000, the conference in Winnipeg that dealt with ``war-affected children'' was ground-breaking. It involved cooperation across a number of government departments. CIDA and Foreign Affairs were the co-hosts of that particular conference. The UN special assembly in 2002 dealt with war-affected children, Aboriginal children and child participation. The resulting resolution 1612 added to a long tradition of Canadian engagement. That brings us to the present.
The second comment is about our programming approaches. I will start with a development backdrop to this.
[Translation]
As we all know, children make up a disproportionately large number of the poor in least-developed countries.
[English]
About 40 per cent of children in developing countries live in families that earn less than $1 a day. The poverty and child rights nexus is a strong one. Poverty denies children their human rights at a critical stage in their development. That is part of the orientation that CIDA undertakes. Realizing children's rights, including ensuring that they enjoy the right to express their views, is essential to reducing poverty in a sustainable way.
Girls and boys under the age of 18 may not have a vote; they may not be given space to voice their concerns either. They may be among the most abused and exploited members of their societies. Yet, as we see in many developing countries, children are already running their households and contributing to their economy. They look after younger children and are even having children themselves. From the development perspective, children have the power to perpetuate cycles of poverty and violence. With our support, however, they also have the power to break those cycles and build a better future.
From that perspective, CIDA looks at child rights and integrating Canada's commitment to child rights as an issue that cuts across all our sectors. We have focused on the Millennium Development Goals, which are a set of eight measurable, targeted, clear goals on poverty and sustainable development. Six of those eight deal directly with the situation of children. When you are talking about health or education or poverty, you are talking about children's rights. From our perspective, we look at children's rights not as a focus, but as an area to consider when looking at governance, health, education, the environment, private sector development, and even HIV/AIDS. We see gender equality as an element that cuts across these sectors in such a way that we can integrate the rights of women, men, girls and boys equally. Each sector works to implement and reinforce the improvement of the lives of children.
[Translation]
Take health, for example. Every year, 10 million children die from preventable malnutrition. Every day, 1,400 girls and women die from causes related to childbirth.
[English]
When we work in the area of maternal health, for example — and over the course of the last few years we have put more than $50 million into this area — we believe that it focuses on children's rights to life, to survival, to development and to ensuring the standards of health that allow for future generations to be able to provide opportunity in life.
It is the same in education. There are 130 million children out of school right now. In the past four years we have quadrupled our spending on children's education, and to close the gap between girls and boys. There is still much to be done with respect to compulsory and quality basic education, but this area directly addresses the issue of child rights.
We have also learned that the work we have done across different sectors does not get at the 180 million children involved in the worst forms of child labour, the 13 million internally displaced children, the 15 million AIDS orphans, and the 2 million girls who enter the commercial sex trade each year. We have developed over the last several years an Action Plan on Child Protection to provide dedicated support in these areas that are hard to get at and that involve the worst forms of suffering and abuse. I believe we are at approximately $170 million and counting over the last five years for programming on child protection.
In implementing this particular program on marginalized children, we have looked at, for example, certain forms of child labour. With the support of the Honourable Senator Dallaire, in his capacity as special adviser, we have looked at the issue of war-affected children. We have also dealt with a number of institutions in various countries, helping to support efforts to address child trafficking.
These are some of the elements in a child protection package that is different from what you see across sectors and where you are trying to integrate child rights concerns.
The action plan also had a $2-million research fund to look at thought leadership on some emerging issues, and to try to get some advocacy and some leverage on things needing to be addressed in the future.
We have looked internally at some of our organizational work to strengthen our capacity to effectively integrate and promote a child protection agenda.
[Translation]
We are moving forward. We are focusing on five or six areas at this time. Our efforts include expanding a human rights based approach to children's rights and their protection. We all know that children are powerful actors in their own development. We are looking at additional ways of facilitating their freedom and giving them the tools with which to play a key role in society.
We are also building the legal and institutional capacity of government and civil society organizations to meet the commitments made to their own children and citizens under the terms of various conventions.
[English]
We have been looking at the issue of research and also of policy dialogue, the kinds of laws, policies and regulations that can affect children's rights in a systemic fashion. We think there is much work to be done that goes beyond projects and programs for children and looks at systemic changes from a policy perspective, using, as I said, the findings of our child protection research to inform future programming.
We are embarked on an agenda over the last five years in places that CIDA as an agency had never been before. We think our research agenda is providing a basis to articulate what might be another forward-looking agenda for us. Over the course of the next few weeks, we will be bringing together young people and researchers from around the world at the University of Ottawa to take stock of what has happened through those research projects.
[Translation]
And also by building on the momentum it has created in the field of child protection.
[English]
CIDA is committed to enhancing the role that Canada has played in the fight against global poverty, and in doing so, to continuing our focus on children as a critical element of it. We believe that their courage, experience, creativity and ability to change the world around them can transform attitudes and behaviours and make a positive and sustainable contribution to development.
This is the kind of agenda that we wanted to sketch out a little and, with Mr. Montgomery, be able to answer questions on and to explain further.
Senator Munson: We have been given two interesting reports. I notice that you mentioned the phrase ``child trafficking,'' yet it is not in your prepared text. We did ask the people from the Canada Border Services Agency about child trafficking. There was some feeling in this committee, and perhaps in this country, that child trafficking is going on, and yet in the previous testimony the line was that there was no evidence of that; but you have just mentioned it.
From your work, do you have any evidence of child trafficking?
Mr. Wallace: I will pass it over to Mr. Montgomery for statistics. Particularly in Southeast Asia, there is some evidence.
Micheal Montgomery, Senior Child Rights Analyst, Canadian International Development Agency: I think our references are to developing countries. We need to consider which countries we are talking about. In relation to trafficking into Canada, it may be that there is not much evidence, but there is certainly evidence of trafficking across borders in some of the countries in which we are working. We can provide examples of how countries are addressing that, if necessary.
As I say, I think the evidence of domestic trafficking is more tenuous.
Mr. Aterman: The issue does come up from time to time in cases before the board, but it is almost collateral to the issue the board has to determine. It is not brought forward by the person in question, generally speaking, as part of his or her refugee claim. There are a few instances where it has become an issue. You will recall, for example, where boats were arriving off the coast of British Columbia from China and people were making refugee claims. In some of those instances, there were unaccompanied minors. It appeared to the board that those children were being brought into Canada with a view to having them engage in some form of labour at a later point. It did not become the basis upon which the claim was determined, but it was an issue that arose in the evidence.
It comes up from time to time as a collateral issue, but by and large, the board does not have to deal with it; it is not brought into evidence. It is difficult, as a result, for us to quantify it in any way.
The other issue there is that there are instances where children are being trafficked and smuggled, and the two are not necessarily the same. In some instances, their parents may be consenting to them being smuggled, but it does not necessarily follow from that that they are being trafficked. It is difficult to get a handle on it.
Senator Munson: You made that statement. It still shakes me every time I hear something like that. As a journalist, I worked overseas in many countries and saw a great deal of poverty. With regard to health status, for example, every year more than 10 million children die. It is an unbelievable figure. You talked about a number of girls and women dying from causes related to childbirth.
It says here that CIDA spends $54 million. Is that, by other countries' standards, a lot of money to tackle these kinds of issues, or is it a paltry sum? Where are we as a player in dealing with these issues?
Mr. Wallace: We have, on a proportional basis, probably put more money into health than any other sector. Last year our disbursements on health were over 25 per cent of our total envelope, which is a little under $3 billion. When we talk of $54 million, it is actually for a targeted program dealing with maternal health; but our overall health effort is bigger now than it has ever been because of a number of things having to do with infectious diseases, in particular, but also our recognition of the link between health and other developmental impacts.
From a proportional perspective, Canada looks quite good. From an absolute perspective, we are talking about a portion of Canada's overall aid effort, which needs to situate itself in relation to other donors.
I would just add that we believe those figures, which are in fact compelling and distressing, can be reversed without huge effort as well. These are needless deaths. These are deaths that the world can do something about directly.
Senator Munson: You mentioned, as part of a paragraph in this round: ``We also deliver children's rights training to CIDA staff and partner organizations.
What kind of model do you use? What kind of training is involved to get into the minds and bodies of children and personnel?
Mr. Montgomery: CIDA has been running training on children's rights and protection for five years. It is a two-day course in French and in English. It happens twice a year. We target CIDA officers as well as partner organizations.
In terms of a model, we work closely with UNICEF; we obviously cover the UN Convention on the Rights of the Child, and then we examine what a rights-based approach to programming might look like. When officers are looking at program proposals, they can be quite explicit as to what children's rights issues might look like.
Rather than looking at children as victims, we see them as active participants. It is about actually seeking their opinions on services that affect them. This could be in relation to child labour, education or health issues, for example.
Senator Nancy Ruth: I have another health question. I have just begun to get interested. What happens in countries like South Africa, where in 20 or 25 years people will die at age 35, and there are orphans hanging around?
What happens to democracy in a nation state when there are no trained judges because they have all died off too early? What happens to racism in such countries where there are fewer incidents of white people with HIV? Is there any thought about what role Canada could play in building democracy?
Mr. Wallace: I lived in Lesotho, Southern Africa, for two years, maybe one of the most affected countries in the world. The life expectancy there is now under 40.
I have two comments. First, we have never been in this situation before. I do not think that we have ever seen a demographic effect such that HIV and AIDS have had on any society. We are in many respects uncertain about what the future holds.
Second, in particular with respect to South Africa, some of the work there has been remarkable with regard to antiretroviral drugs, bringing people into preventative, supporting communities and caring for those affected by HIV. We are actually seeing communities starting to be made whole again. It is not a death sentence.
The movement spearheaded by the World Health Organization, called 3 by 5 — 3 million people in developing countries to be on antiretroviral drugs by 2005 — took off in South Africa. They have done a good job of it. You can see some of the effects, when you can work across prevention, care, treatment and support, in the way the communities operate.
We have also seen Canadian NGOs do terrific work with children. They are trying, as Mr. Montgomery was saying, to bring in children as part of the solution and not just part of the problem in a scourge such as HIV/AIDS.
There are hopeful signs of turnaround in a number of African countries, including South Africa, but we have not gotten a handle on it yet. We have not fully deployed this initiative. I think we know what we need to do now.
Senator Hubley: In a 2005 report by the Global Campaign for Education, it was pointed out that Canada ranks seventh among rich nations in helping to finance basic education in the developing world. It criticizes Canada for failing to provide its fair share of the total needed. Canada's ranking had not changed since the Global Campaign for Education released its report in 2004, despite the fact that universal primary education is one of the Millennium Development Goals.
I am wondering how you might respond to that criticism. What is your department doing to improve funding for education in the developing world? Where will your funding be focused, in what countries? Is it in any way tied to the importation of Canadian goods and services?
Mr. Wallace: The last part of your series of questions is easy: No, our funding is 100 per cent untied.
Going back to the start of your question, we have had a strategy on basic education as our predominant focus. By that we mean 10 years of high-quality education that keeps children in school and provides an opportunity in life. Our education strategy has focused in and around the objectives of the global coalition and the Education for All vision behind it.
We have been ramping up our campaign. We quadrupled, as I mentioned, our spending on education from early 2000 to 2005. We now have over $100 million of funding for education in Africa alone. We are looking at ways to continue that.
If Canada is seventh in the world right now in funding education in developing countries, we are intensifying that particular effort. We are looking for ways to do more.
It has helped that we have not been all over the map in terms of education. Rather, we are saying that Canada needs to stand up for 10 years of quality basic education in the countries that need it most. I think we are doing a number of things in that area that have helped.
If we had more resources, would we use them effectively? Absolutely we would. This is one of the investments in development that has huge payoffs.
Senator Hubley: When you implement an educational program, are you restricted because of infrastructure in many ways? In other words, do you have to have a school facility? Is that something you provide, or do you just present the programs for education?
Mr. Wallace: When you look at the 100 million-plus kids who are out of school right now and the contexts in their countries, their needs are different across the board. For example, some kids in fragile and failed states need to be addressed through the Freedom from Fear Agenda. Just getting to children is the big key, not infrastructure.
In other countries, they cannot sustain the salaries of teachers. Some places have actually run out of trained people because of HIV/AIDS, so the human resources behind support for basic education are not there.
In still other countries, particularly in rural areas, it is an infrastructure problem. We found, for example, that school fees have been an extraordinary impediment to education. In Tanzania, they cut school fees, even though they were only a few cents a day. I believe the school attendance went from 47 per cent to above 80 per cent within two years.
You have to look at where the impediments are, and in each country the context is different. That is why it is important that we develop an integrated approach to education. It is not just a focus on infrastructure, curricula or school fees. It involves putting together particular packages with other donors. It is when you put those packages together that your weak link does not give you a problem.
Senator Dallaire: Mr. Aterman, I want to talk about deportation: The pre-removal, assessment, and safe return of the child, wherever the child is.
Have we deported children this year? Are we in the process of doing so? Are there special training and methodologies used in such cases?
Mr. Aterman: I would like to clarify one thing. The board makes removal orders in relation to children who are inadmissible to Canada. It also may order deported the parents of children, who may then remove their children from Canada.
Pre-removal risk assessment is a separate procedure and outside the jurisdiction of the board. It is done by CBSA at the point of removal. It is a last check on whether or not people are at great risk if they are to be removed from Canada. That is engaged at a point where they are ready to remove someone, which is usually well after the board has made its determinations.
Perhaps I can just recap, senator. Where a child refugee claimant makes a claim and is determined by the board not to be a refugee, then, subject to any determinations by the Federal Court that the board got it wrong, the child will be removable. At that stage, the child's parent or guardian may ask CBSA to conduct a pre-removal risk assessment. At the end of the day, the board certainly makes negative determinations in relation to children, whether it is refugee claimants or children who are inadmissible to Canada. However, it makes them on criteria that are equally applicable to children and adults.
Senator Dallaire: If a child has arrived claiming to be a refugee and we decide that he is not a refugee and deport him, do we have any follow-through at the other end, or does our responsibility end once the child is in the hands of another authority?
Mr. Aterman: I cannot assist you with that, insofar as the board does not deal with the processes of removal and the actual deportation. That is something that the Canada Border Services Agency does.
If children come before us stating that they fear persecution in their country of origin and the board determines that they do not, then they become removable. That is when a process like the pre-removal risk assessment is engaged.
As you can see from the exchange we are having, it is a complicated process. There are many steps involved. The Federal Court can be involved. There is also the possibility of applications being made to the department on humanitarian and compassionate grounds. Again, that is something over which the board has no jurisdiction. We are applying the refugee definition and we are limited to that.
Senator Dallaire: What about children who arrive separated from their parents? Is there a follow-through so that these children do not end up in the wrong hands, where they may be abused or trafficked into the sex trades or something like that?
Mr. Aterman: Within the limits of what we have jurisdiction over, we try to deal with that. For example, when an unaccompanied minor comes before us and there is no parent or family member around, we will appoint a designated representative. As I indicated earlier, the purpose of appointing that designated representative is to ensure that the child can participate meaningfully in our proceedings. The designated representative does not have authority, necessarily, to deal with the child welfare issues that that child may be facing. However, in practice, they tend to address those issues. Although we appoint them for the purposes of assisting the child through the hearings, invariably, we see that they do get engaged in working with child welfare authorities, the board of education, et cetera, to ensure that the child is in safe circumstances and is being dealt with.
Essentially, our authority ends there. There are instances when we do have concerns about the child's welfare. In such cases, we will contact the provincial child welfare authorities and it then becomes a matter within their jurisdiction.
Senator Dallaire: Does that work well with all the provinces?
Mr. Aterman: It varies from province to province. This is a federal-provincial matter. As I understand it, the age at which child welfare authorities may be engaged varies from province to province and is not consistent across the country.
In Quebec, for example, we have a standing relationship with an NGO that deals primarily with immigrant and refugee children. We at the board deal with them on a regular basis. They are our liaison with the social services agency. It is quite an effective working relationship.
In Toronto, we have had to improvise a little. We have a relationship with the law firm McCarthy Tétrault, which provides pro bono services for the children who appear before us. Sometimes we deal with individual lawyers who act as designated representatives and sometimes we deal with social services agencies. It is a little ad hoc in some instances.
As I indicated, we have limited jurisdiction. We are dealing with the adjudication of the case and not necessarily the other aspects of child welfare.
Senator Dallaire: So the handover is not necessarily a smooth process between you and the provincial agencies throughout the country. Nor is the person who is designated to help them necessarily mandated to go beyond just helping them through the process, which could last for months, could it not?
Mr. Aterman: We try to deal with them quickly. It certainly can last for months. Their authority is limited to dealing with the children as they appear before the board — in other words, the litigation and the adjudication process, and not necessarily the other aspects. There are areas where it is uneven.
Senator Dallaire: It is not very clear to me. It is something that perhaps the committee may want to pursue.
First, I wish to provide a backdrop for those of us in the international sphere in regard to children. CIDA was literally gutted in the 1990s with the massive reductions that took place at the time to reduce the budget deficit. We are only now creeping back up, to a still irresponsible level of .37 per cent of GDP. I have just come back from Holland, where they are at .8 per cent of GDP. You have to wonder about the priority we are placing on international development. CIDA is nowhere near the funding level they need to do the work, let alone deal with the horrible hassles concerning contractual arrangements and the fact that we throwing money away left, right and centre, money which seems to be wasted in many of these countries. If you are in international development and you do not think there will be wastage, just look at how we are wasting money. You can imagine the wastage in countries that are barely organizing themselves and trying to build democratic structures.
On the child protection side, we are talking about war-affected children, child soldiers, protection within these nations and how they actually handle children. There is also a growing dimension in conflicts of raping young girls.
More and more children are being used as instruments of conflict, be that right up front as child soldiers, sex slaves, bush wives, or sources of rape, which creates fear and ultimately gives control to extremists and how they manoeuvre. Do you not believe that perhaps the child protection side of the four original social development priorities that Minister Minna had has been underplayed in the priorities for the effort in regard to the enormous suffering and vulnerability of children in these conflict areas?
Mr. Wallace: It is absolutely clear that you cannot get adequately at child protection through simple health, education, governance or democratic development programming. You need targeting. You need to target specifically who the children are, where they are, and the best means to get to them effectively.
We have learned that if you do not have a dedicated child protection focus in your programming, in the end, you do leave many people marginalized, including the phenomenon that you know well and which you have just described.
Can we do more with respect to the child protection program, on which we have, over the last five years, spent $171 million and counting? We could use more, and we would do more and do better with more resources. Is $171 million a fair amount of money? In some respects it is, but we have been able to do a lot of good work in areas that are quite important.
Our overall sense is that we leave a lot of unfinished business in this area. As we learn more through this research program, it may help us to target efforts a little better. We need to be more focused and more intense in some of our efforts, but above all, we cannot back off, because we will not make it through regular programming.
Mr. Montgomery: I will speak as a non-Canada. I am seconded to CIDA. I believe we are lacking leadership in relation to children and development. That is true in terms of children with HIV, for example. Spending on children and HIV is extremely low. UNICEF and UNAIDS have recently campaigned to bring the attention of the world to that issue through the Unite for Children campaign. It is not only about the children who are infected with HIV; it is the 15 million children who are affected as orphans.
With regard to spending by countries on children, we definitely could do more. Attention need to be paid to that issue in developing countries, as attention needs to be paid here.
You spoke about girls in fighting forces. CIDA has supported the child protection research fund looking at this issue, and it has been one of their most innovative projects. Of the 13 projects, six were focused on war-affected children and three specifically on girls in fighting forces. We discovered, of course, that children in general are absent, but girls in particular are absent, in demobilization initiatives and so on.
I thank you for asking the question, because you are right to say that children do need more attention, and specifically funding.
Senator Dallaire: We are talking about the $2 million in R&D spent by a committee that I chaired, and we are now assessing the results of that work. I hope that you restart that committee. We are the only country that has done R&D in child protection. No one else is doing clear research.
On the demobilization, rehabilitation and reintegration side, we can perhaps be doing more. That could be a target area for us with regard to child soldier leaders and how to reintegrate them, particularly the girls, after the enormous trauma they suffer. That takes more than three months of rehabilitation and reintegration, particularly in male- dominated societies, where women who are raped are thrown to the wolves. NGOs do not seem to be able to take on bigger and longer-term projects.
In the arena of children involved in the drug trade, as an example, in Rio de Janeiro they are killing 3,000 children per year, ranging from the ages of nine to 14, who are involved in the drug trade. Thought is being given to putting these children on the same footing as child soldiers. I have done an assessment of this, particularly in Rio de Janeiro, where it is just like a war. The police are shooting the children. Is that not an area we would want to open up? These drug wars are worse than the gang wars in New York. You might want to consider whether they should be given elevated status with regard to protection and whether there should be a UN effort in regard to that.
Finally, a word on Canada Corps. You people run Canada Corps. I am not convinced that Canada Corps is achieving the goal of making Canadian youth much more engaged. I believe that Canada Corps should have no one in its leadership above the age of 30 as it tries to promote Canadian youth moving beyond our borders.
I am very happy about the $170 million, but I believe that proportionally, the child protection exercise could use more.
Mr. Wallace: Thank you for your counsel on the first points. It is wise counsel that we should take seriously under advisement.
With respect to Canada Corps, opening up a broader discussion would be a good idea. Canada Corps is currently on two tracks. One looks at trying to create a centre of excellence on governance writ large. It can involve youth, but it is not just about youth. It is about how to strengthen the best that Canada has to offer on democracy, good governance, justice and human rights. That has a focus that is more directed to the governance side.
The issue of mobilizing Canadian youth for development is a separate track. We could talk further about the Canada Corps mandate and where to go with it at your convenience.
The Chairman: Mr. Aterman, the Baker case, with which I am sure you are familiar, determined that the rights of the child had to be taken into account, particularly those of children born in Canada, when you are deporting adults.
Have you changed what you do on the board as a result of the Baker case? Do you independently take into account the rights of the child, as opposed to the best interests of the child? I heard you talk about best interests. We could debate the definition of ``best interests,'' but the rights of the child are entrenched in the convention. It is one measure of rights.
Mr. Aterman: Baker was a case decided by an immigration officer in relation to the removal of a mother and the consequences for her Canadian-born children. It has its most direct impact on the work of the board in cases of removal in the Immigration Appeal Division, where permanent residents may be facing removal from Canada because they have committed criminal offences or have misrepresented their status. The issue for the Immigration Appeal Division is how, in exercising their discretion, they weigh the best interests of the child in making that determination.
In applying Baker, the best interests of the child is a factor that the members of the Immigration Appeal Division consider, but it is not the overriding factor. We have had subsequent jurisprudence from the Federal Court that indicates it is something the board must consider, but it is not determinative of the case. We get a range of fact situations. There may be instances where the parent in question does not have a particularly close relationship with the children and, in some instances, the influence of the parent may not be entirely positive. We have had cases where board members have determined that it is in the best interests of the child that the parent be deported, as well as in the best interests of Canadian society. There are other instances in which board members have made a determination that it is in the best interests of the child not to remove the parent from Canada. If they did not have children, the board would have come to a different conclusion, but the fact that the children's interests were at stake has been the determinative issue. It is driven by the facts of the case, but it is a case that has changed the way in which the Immigration Appeal Division does its work whenever the interests of children are at stake.
In terms of the second half of your question about the rights of children, as I indicated earlier, by and large, as far as refugee claims are concerned, the Convention on the Rights of the Child has an impact on the board's procedure and less on the substance of its decision-making. There are a few instances in which it has an impact on the substance of the decision making, and that is where the rights of the child are engaged in a different way.
A concrete example is the denial of a right to education. If an adult put that forward in a refugee claim as persecution, the board would say that perhaps it is discrimination, but it does not amount to persecution, and therefore the person is not a refugee. However, there have been cases of the denial of the right to education. I am thinking of Afghanistan, where, under the Taliban, female children were denied a right to education. In those instances, the board made a determination that that violation of the child's rights is sufficient to constitute persecution.
There are a small number of cases where the board is looking at the impact of the persecution differently from the impact on adults, but by and large, it does not arise.
The Chairman: That is helpful.
I thank our witnesses for being here and for providing the information they have. We will undoubtedly be in contact for follow-up as we continue our study.
The committee adjourned.