Proceedings of the Standing Senate Committee on
Human Rights
Issue 11 - Evidence
OTTAWA, Monday, October 23, 2006
The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations; and to examine and report upon Canada's international obligations in regard to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.
[English]
The Chairman: We are continuing our study of the UN Convention on the Rights of the Child. We will be monitoring issues relating to human rights and particularly, we will look at the machinery with respect to the UN Convention on the Rights of the Child and any other international obligations that affect children.
We are pleased today to have a panel before us from the University of Ottawa, Faculty of law. Craig Forcese, assistant professor, has brought three students with him: Farzana Jiwani, Mary Mitsios and Jennifer Stebbing. In this committee, the senators read about you so that we do not take up committee time. It is not to reduce your capabilities for the purposes of the audience, but to ensure that we hear from you. We are pleased you are here to participate. Please proceed.
Craig Forcese, Assistant Professor, Faculty of Law, University of Ottawa: On behalf of the University of Ottawa, Faculty of Law, foreign policy practicum, I wish to thank senators and this committee for inviting us to present our views on the American Convention on Human Rights.
In the foreign policy practicum, a team of law students completes a comprehensive review of a topic in Canadian foreign policy with a focus on international legal issues. The finished product is a detailed brief submitted and presented to governmental and non-governmental groups.
In 2005-06, the practicum produced the brief submitted to this committee on the merits of Canadian accession to the American Convention on Human Rights. That focus in turn reflected conversations that I had in May of 2005 with members of the Inter-American Commission on Human Rights expressing concern that Canada was not a party to that hemispheric treaty. This project was also inspired by past work by this committee on the American Convention on Human Rights.
The views reflected in that brief are the work product of the practicum and reflect the views of the practicum members. Three members are here today and two members send their regrets. In the seven minutes we have available today, the three members of the practicum will introduce themselves and then reflect briefly on a substantive area from the brief.
The Chairman: Before we turn to that, I looked at our next panel and we are studying all the international human rights machinery. We are having a larger study on the UN Convention on the Rights of the Child. I saw the order differently. You will concentrate on the Organization of American States, OAS, the convention and the court process there. I will now turn to Ms. Stebbing.
Jennifer Stebbing, Student, Faculty of Law, University of Ottawa: I would like to thank you, on behalf of the three of us, for providing us with the opportunity to present to the committee today. I will provide a brief introduction to the OAS human rights system and the main reason Canada should accede to the American Convention on Human Rights, ACHR. Ms. Mitsios will discuss the different legal options available to Canada upon accession that would remedy any inconsistency with Canadian law. She will also discuss the issues of the right to life and the federal clause. Ms. Jiwani will discuss the issues of freedom of expression and right of reply, and will provide a brief conclusion.
The ACHR came into force in 1978. Currently, 25 member states have acceded to it. The two glaring omissions are Canada and the United States. The ACHR is arguably the most comprehensive regional human rights document. It protects civil and political rights, as well as economic, social and cultural rights of the individual. Canadian citizens would benefit from the additional jurisdiction of the commission and the use of the court that would be provided to them through the ACHR. Accession would also give Canada the ability to file complaints in the court against states who infringe on human rights, resulting in the improvement of the human rights situation in the Americas.
Canada is pursuing further economic integration in the hemisphere without helping to create a positive complementary human rights system. Such a human rights system is pivotal in order to protect citizens against the sometimes negative effects of economic integration. By acceding to the ACHR, Canada can use the human rights system to promote economic progress while respecting human rights. We will also have a more persuasive voice in those countries that have not acceded or are thinking of denouncing the convention.
Canada could also effect change from within the human rights system in the Americas by providing the experience and expertise currently lacking in the system.
In conclusion, although Canada has the Canadian Charter of Rights and Freedoms and has acceded to the UN convention concerning the same human rights topics, accession to the AHCR will increase legitimacy of the system, encourage other members to fully participate, and provide Canada with an enhanced opportunity to pursue its goals within the system to ensure transparency and accountability.
Mary Mitsios, Student, Faculty of Law, University of Ottawa: As mentioned, I will deal with three issues today. First, despite many benefits of accession to the ACHR, there are challenges as well. Essentially, the challenges are concerns over new legal obligations that the ACHR would impose.
In resolving these concerns, we recommend that Canada utilize conditional interpretive declarations, which have the legal effect of making an accession conditional on an interpretation of a term or provision.
Further, we recommend that Canada utilize interpretive declarations. The legal effect of this tool would not impose a specific interpretation of a term or provision; rather, it would express an understanding of it.
Second, in terms of particular rights and obligations under the ACHR, there is uncertainty with regard to the right to life guaranteed by article 4.1 of the ACHR. More specifically, there is concern among academics and civil society as to whether article 4.1 will require the regulation of abortion in Canada. Hence, we strongly recommend that Canada adopt a conditional interpretive declaration imposing Canada's interpretation that article 4.1 does not require Canada to regulate abortion.
Third, in regard to treaty implementation, article 28 limits the responsibility of the central government so that its implementation responsibilities do not trench on the jurisdiction of other levels of government. Despite this, the Inter- American Commission on Human Rights has interpreted implementation as the responsibility of the central government ``regardless of its constitutional division of powers.''
Responsibility for implementation does not preclude the government from engaging in negotiations with provincial governments regarding implementation. Consequently, we recommend an interpretive declaration recognizing Canada's need to negotiate with provinces in light of our division of powers.
Farzana Jiwani, Student, Faculty of Law, University of Ottawa: As mentioned, I will highlight two additional concerns with regard to ratifying the ACHR, which include freedom of expression rights and the right of reply.
First, limitations placed on freedom of speech defined by article 13 of the ACHR are consistent with Canadian law. Article 13.2 states that exercising the right to freedom of expression is subject to subsequent liability rather than prior censorship as found in Canadian law. However, article 13.4 provides an exception where it permits prior censorship ``for the sole purpose of regulating access to'' public entertainment.
To ensure that Canada's limitations on free speech are not subject to challenge in the Inter-American Commission on Human Rights or court, we recommend conditional interpretive declarations for public entertainment and that the scope of article 13.2 be interpreted broadly.
Second, article 14 of the ACHR, granting the right of reply, is compatible with Canadian legislation. Article 14 allows a right of correction to anyone injured by an inaccurate or offensive statement to the public by a legally regulated medium of communication.
Although the right of reply does not exist in Canada, provincial legislation offers remedies to victims of defamation. To avoid any ambiguity, Canada should adopt an interpretive declaration specifying that the right to reply is limited by the rights guaranteed by free expression and freedom of press.
As discussed, Canada can easily reconcile inconsistencies between domestic law and the ACHR by adopting declarations. The legitimacy and effectiveness of a regional, comprehensive human rights system is diminished as a result of Canada's reluctance to fully participate. Thus, to ensure that human rights protections are a priority where economic integration outpaces human rights protections, Canada must accede to the ACHR with the recommended declarations.
The Chairman: Thank you. You have outlined the positive points, but perhaps more important, what are the impediments to Canada signing? We would like to explore those impediments further with you.
Ms. Mitsios, there have been many consultations about how we can support the OAS and our initiatives there, both in foreign policy and through the courts, but no government wants to reopen the abortion issue. There has been this feeling that if we adopt it, even with the interpretation, someone from Canada may to make the point, either way, on that issue. Have you given thought to how a government could handle that dilemma, despite putting forward its own interpretation?
Ms. Mitsios: We have discussed as a group that one way that the government could handle that type of dilemma would be to ask the Inter-American Court of Human Rights for an advisory opinion so that we have clarification on the interpretation.
The Chairman: Have other advisory opinions been given by the court? I know our court has recently gone that route, but has the Inter-American Court of Human Rights ever given advisory opinions in advance? Here it would be in advance of signing on. Is that unique or are there other examples we could look to?
Ms. Stebbing: The court has given many advisory opinions but on their own accord. To my knowledge, they have not given an opinion before someone has actually acceded to the convention. That would be something new for the court to do, but it is not outside the purview of the court. If Canada wanted to be sure, before signing on, what the interpretation of article 4.1 is, that is one of the best ways to do it, because if the court then interprets it in a way that Canada does not want to accept, they know that they then need to either put in a reservation or a conditional interpretation declaration. It would help to clarify things. It is surprising that no one has asked the question yet. I think it is because no one wants to know the answer. States vary on their view of what it should be, even while it was being written.
The Chairman: For the record, in your study there is nothing precluding a state, in advance of signing, from applying to the court for an advisory opinion?
Ms. Stebbing: There is nothing to preclude asking, but the court may not answer.
The Chairman: That would be, of course, the court's discretion or prerogative.
Ms. Stebbing: Yes: The court may choose not to answer because we have not acceded, but a state that has acceded may choose to ask it on our behalf. If we have friendly relations with someone in the OAS who has signed on, who is willing to ask the question for us, then it may have more power and the court may answer it that way.
The Chairman: In your opening, Ms. Stebbing, you said there would be a benefit to the hemisphere if Canada signed on. Particularly to women in the other countries, what do you think the benefit would be of our signing on?
Ms. Stebbing: That is a good question. In women's rights, Canada has already done significant things in the OAS for those rights and we have signed on to other understandings concerning women's rights.
In general, signing on to the ACHR would create a system that is more robust, with the added benefit of having a first world country such as Canada involved, with all our jurisprudence and all our experience there. I do not see how that could not help anyone, specifically children or the poor. Having the experience in the system and our resources would help in every way, shape and form.
Senator Carstairs: While I fully support Canada joining and signing the American Convention on Human Rights — and I am interested in your declarations because I think they are significant — my experience is that the court system is not working terribly well. I sit as the Vice-Chair of the Committee on the Human Rights of Parliamentarians for the Inter-Parliamentary Union. We have asked over and over again, particularly with respect to cases in Ecuador and Colombia, for the Inter-American Court of Human Rights to look at those cases and examine them. They often say they will do it, and then they argue that the backlog is so terrific that they cannot ever get to the cases.
In your study of the convention, and therefore the Inter-American Court of Human Rights, what is your experience with the operation of the court and its lack of effectiveness? Can Canada help by signing and by providing some of the funding to get this court system more up and running than it is right now?
Ms. Stebbing: There are a couple of things with your statement. First, I believe the backlog is partially due to money. They cannot get through the cases because they do not have the support of any system contributing enough funds to do enough at one time.
I look at lack of effectiveness in two ways. First, the court does have cases. The decisions are supposed to be binding. The majority of time they are, but I do not know the percentage. The states abide by the decisions. The court is effective when it makes a decision and gets through a case. I take your point that the effectiveness can be seen differently, depending on if they get through enough cases or not. I agree with you that the court is not able to do as much as it can, mostly because of budgetary reasons and not having enough people to take care of the cases.
Senator Carstairs: If Canada was a signatory, do you think that would increase the budget and, therefore, increase the opportunity to deal with some of these cases?
Ms. Stebbing: I certainly hope so. I hope the government would not only put in their fair share but would also help out at the beginning to show that the court is a good system that provides good decisions and provides rights to the rest of the signatories. If the other signatories can also give more, then it would happen. By signing, I hope Canada would also provide more funds to that system, which would definitely help.
Ms. Jiwani: If Canada did ratify the convention, it would be considered to be more legitimate and effective.
In answer to your question, women's organizations have a lot of interest in seeing this convention ratified and would be willing to put in the resources, the expertise and the funding — not just from the government but from these women's organizations that have produced these reports with a tremendous amount of research.
Ms. Mitsios: In addition, in terms of Canada ratifying the American convention, it would also lend political support and would add to the political will throughout the hemisphere because Canada is seen as one of the leading powers in the hemisphere. That ratification may encourage other countries, along with Canada, to add their funding, support and expertise.
Senator Munson: Welcome. I am relatively new to this committee. We have been studying the rights of the child primarily since I have been on the committee.
You talk about enhancing Canada's role in the OAS and the American Convention on Human Rights. You are doing fine work at the university, but when you use the phrase ``Canada, when it signs on, will enhance this and do this,'' can you give me specific examples so that people watching the work of this committee can understand exactly what you are talking about? I understand the broad strokes here, but when it comes down to the man and woman on the street, what are we enhancing and saying to Canadians that will put us on another level internationally in the field of human rights? Can you give examples of where we will go with this?
Ms. Stebbing: If you are looking at how it will enhance Canadian lives first, currently under the OAS system Canadians can go to the Inter-American Commission on Human Rights if they have a human rights complaint against Canada from our rules in the OAS now. If you join the ACHR —
Senator Munson: What is that?
Ms. Stebbing: The American Convention on Human Rights.
Senator Munson: Yes, but we must understand it.
Ms. Stebbing: When you accede to the ACHR, you can also allow the jurisdiction of the Inter-American Court of Human Rights. The court is what Canadians do not have available to them right now. After you go to the commission, normally for Canadians right now, it will end there with that decision. However, a decision is not binding; it is a recommendation. The government can choose to do what it pleases with that recommendation. If the commission feels it is a strong issue that needs to be resolved by the court, they recommend to the court and the court then takes that decision on. The court then comes out with a binding decision that Canada is supposed to abide by. As I mentioned before, most states have abided by the decisions made by the court.
It would enhance Canadians' rights to bring human rights complaints. The case of Suresh v. Canada is an immigration rights claim. This ratification would create another level of court looking at the case to see if it meets the rules of the convention and making a decision on that. That is how it will affect Canadians' rights per se.
We also talk about how it will affect South America and the current members of the convention itself. We talk about enhancement because currently Third World countries or countries that do not have G7 economies are involved in the ACHR right now. They have had human rights abuses in the last two decades. They are looking for ways to make human rights better in that country. They look to First World countries and Canada maybe as an example on how to do better. If Canada is involved in the system and says we acknowledge and accept the system, the system itself is more viable.
Senator Munson: Is there a difference between ``ratification'' and ``implementation'' here? While doing the study on the rights of the child, we have ratified the convention but we have implemented nothing.
The Chairman: There are new members of the Senate since we started this. Canada did sign on to the Organization of American States and we became a member. That is both legal and political. We then go to the commission, which is unique for this hemisphere. There is a commission that you can go to and there is a process. However, we have never agreed to sign on to the court. The difference, to remind the public and ourselves, is that it is not like a convention that must submit to the jurisdiction of the court. It is a unique situation in this hemisphere.
We have been studying the situation to give advice to the government because it is beyond what we do in our other studies where we say, let us implement. The implementation here is whether we want to submit to the court and the consequences of submitting to the court. I do not know if you were going to answer further on implementation. Would we need to change any of our laws in Canada, other than saying that the court is now open? Would submitting to the court lead to any other implementation, in your opinion?
Ms. Stebbing: We do not need to change any laws in Canada, and sometimes the difference between ratification and implementation is the way that Canada signs on to treaties. You can ratify a treaty, but it does not apply to Canadian law unless you have written Canadian law the same way, that is, implemented it through Canadian law. That is why there is a slight difference between ratification and implementation. We can ratify a treaty, but it does not change much to a Canadian citizen until it is implemented in our law because the court cannot use it yet.
Senator Munson: As you can see, I am not a lawyer. I am a rather new politician but not new at asking questions because there is a great deal of wisdom around the table that I am learning from every day.
Are major groups opposed to the ratification of the American convention, and do you have any perspectives on their opposition to it? I understand some groups may be opposed.
Ms. Jiwani: Some groups are concerned about the limitation or the scope of the article. For instance, for freedom of expression, some groups argue that it would give individuals an automatic right of reply or right to request a newspaper to make a correction. That is why we recommend having a conditional interpretive declaration so that we understand this article to mean that freedom of expression is limited according to domestic and Canadian law. The benefit of not having to change our laws and show that the ACHR is consistent with Canadian law will help other countries who have not acceded to the convention accede as well, and improve the human rights situation in their countries.
Senator Dallaire: Many people in this country do not even realize there is an Organization of American States. In fact, when Joe Clark got us into it, it surprised us. I was in the army and we did not realize we had signed the thing. There had not been any debate on it. Since then, we have, on our side, received a wealth of information in regard to peacekeeping and the responsibility of militaries to democratic governments, liberal democracies and so forth. There have been many exchanges. Right now, we are helping to rebuild the Bolivian military to move away from a historic dictatorship methodology to a democratic country. Therefore, there are new fights as nations, in regard to what this region of the world provides. We have always concentrated on North America. We know little about this region of the world and we are trying to find our way in it.
A number of people immigrate from Central America, the Caribbean and South America to our country. Can you tell me whether the following countries have signed on or ratified it: Haiti, Colombia, Venezuela, Uruguay, Jamaica and the Dominican Republic? Have people who come from those countries then called for us to participate in this convention to help the situation back home because one of the reasons they are here is they have been victims of human rights abuses in their country?
Ms. Stebbing: Colombia, the Dominican Republic, Haiti, Jamaica and Venezuela have all signed on.
Senator Dallaire: Therefore, members of the Americas who immigrate to Canada are not necessarily a lobby group that would help us move this to ratification.
What is the human rights structure of many of those countries who have signed on and ratified it? Is it a commission or a commissioner in their country who runs human rights? Is it simply in the ministry of justice? Is there a political head to any of that? What do you know of those human rights structures in those countries compared to ours?
Ms. Stebbing: I am sorry, but we did not research that in writing our paper, so we cannot answer that for you. Any of us would be happy to find out for you and send you an email, if you like.
Senator Dallaire: I am keen on that because I am trying to move the point slowly in Canada regarding our leadership of human rights. I believe human rights should have political leadership and not necessarily a bureaucratic one spread over the countryside.
The Chairman: Perhaps on that point, if you have the time to research and reflect on it, you could submit it in writing to the clerk, and then we can circulate it to all the senators in both languages for their benefit and information.
Senator Dallaire: I would like to go back to article 28 regarding the responsibility of the central government in its implementation with respect to not trenching on the jurisdictions of other levels of government. I believe that the provinces are a little concerned about us lining this up. What is the heart of their concern? Is it their human rights charters that they have created, or is there something we do not understand there?
Ms. Stebbing: We can give you a partial answer. I know from many of our readings, those things are discussed at federal-provincial conferences. Those meetings, unfortunately, are private and we do not know from the province or the federal government what the actual issues are. As Ms. Jiwani mentioned, provincial concern is probably for the federal clause of the convention itself.
Ms. Jiwani: The article states that the federal government would be responsible for implementation of this convention. If there is a violation, the federal government would be responsible for its consequences. Our point is that there is nothing stopping the federal government from discussing with the province what should be done. Nothing there says that it can override or trench on provincial jurisdiction, so we still maintain provincial and federal powers in ratifying the convention and following article 28.
Senator Dallaire: The provinces do not agree with that, I guess.
Ms. Jiwani: The provinces are concerned that the implementation would allow them to trench on provincial jurisdiction. However, in previous treaties the federal government has negotiated and consulted with the provinces and ensured that they did not trench.
Senator Dallaire: Are these federal-provincial meetings run by bureaucrats? Are they politically driven?
Ms. Mitsios: I believe they are internal.
Mr. Forcese: If I can jump in here, this is true for any ratification process for any Canadian treaty, especially in the human rights area. To pick up on Senator Munson's question, it is true our adherence to the court would necessarily need to be implemented as part of Canadian law per se. However, many of the actual rights in the American convention touch upon areas governed by provincial law, and so it would be up to the provinces, frankly, if any modifications in Canadian law are necessary. In many instances, it would be up to the provinces to temper or modify provincial law.
I suspect that some provinces might balk at the idea that their provincial laws might be subject to scrutiny by a court in Costa Rica. In terms of the actual mechanics of the ratification process, it is a bit of a black box from the perspective of an external observer. However, there is a more or less formalized process whereby the federal government consults with counterparts at the bureaucratic level within provincial governments whenever it is a question of a ratification of an international treaty. The fear is that if the federal government does not consult with the provinces, Canada would not be able to implement the ratification because the provinces would balk.
Senator Dallaire: Is the lead in ratifying conventions a bureaucratic one and not a political one?
Mr. Forcese: The actual ratification process is an exercise of Royal Prerogative and it is ultimately approved by cabinet, but certainly the niceties of most international treaties are governed by the Department of Foreign Affairs in consultation with other departments within government. The ultimate decision on whether to ratify presumably is taken at the political level.
Senator Dallaire: My last question is to you, professor. This is a marvellous initiative, methodology or pedagogical tool that you talk about that is offered to us through this instrument. Did they get an A, a B or a C?
Mr. Forcese: They got an A. Whenever five students write 100 pages, they get an A.
Senator Dallaire: We need to talk about that.
The Chairman: It took a long time before the professor intervened, so I think that speaks for itself right there of the capacity and capability of these students.
Professor Forcese, the students have looked at the various areas competently. In your opinion, is there anything different in signing on to the Inter-American Court of Human Rights from getting involved in any other international capacity? We have, as a committee, advocated that a proper procedure would be that before the federal government enters a new field, it consult with its provincial counterparts in a meaningful way. In that way, if and when there is some consensus the provinces would be on board and know their responsibilities and the consequences to them. If we could go back in time, would that be the kind of process you would have advocated for the Inter-American Court of Human Rights?
Mr. Forcese: In fact, I would advocate that process for any significant international treaty. I would add to that not only the federal and provincial dimension but also the separation of powers between the executive and Parliament. It is not mandatory in our system that a ratification be preceded by any consultation in Parliament itself. Therefore, when you talk of implementation, if the burden will fall on Parliament to pass laws to implement a given treaty and parliamentarians are largely oblivious to the nature of this international obligation that the government is about to enter into, that is potentially damaging to the long-term prospects of implementation. I know there have been proposals not only to formalize federal-provincial consultation, but also to require treaties before they are ratified to be tabled in Parliament itself and subject to scrutiny by a committee like this. Both ideas would be welcome. The government will claim that in terms of federal-provincial relations, they always consult with the provinces. However, it is not a matter of public record nor is the procedure set out in some sort of public document easily accessible to a member of the public to be able to discern what that process involves. Making that process more transparent would be helpful.
The Chairman: You anticipated my second question, but not my third question.
We are in the middle of this. We signed on to the Organization of American States. There was some resistance and continues to be some resistance, but nonetheless there was a political will at one point. The Prime Minister of the day, Prime Minister Mulroney, indicated he was going forward. It was met with some skepticism, but it was moved on and everybody has accepted that it was a good move. We thought there should have been more consultations, we being the Canadian counterpart, before we could sign on to the court. We are not clear where those consultations went, whether there were political consultations at the federal and provincial levels, or for that matter with other states of the OAS. Then time passed and the bureaucrats obviously discussed this issue; we are not sure to what depth or capability.
My whole point is to say that time has passed. It is not a fresh initiative. How do you think we could best overcome bureaucratic or political inertia to resolve whether we should come into the jurisdiction of the court, given that we are halfway through the process and not starting fresh?
Mr. Forcese: Your information is probably the same as mine, which is that the federal government had a cast of thousands looking recently at the prospect of accession to the American convention. There was some concern amongst non-profit organizations in the sense that they were unearthing other reasons why they could not accede. We never saw the final product of that interdepartmental consultation at the federal level. My understanding is that it has been parked on the desk of the Minister of Justice since at least April. I do not know if that information is true, but that is the information I have. If that is the case, then the logical way to incite enthusiasm on the part of the justice minister or other members of the bureaucracy would be to invite them to appear in front of you and answer questions as to what stage this process is at.
Senator Dallaire: The flow of what we have just had is indicative to me that it is a rather unusual circumstance in that this nation has, as one of its fundamental laws, the Canadian Charter of Rights and Freedoms. It is the essence of how we perceive our belief in individuals, our human perspective. It is also a fundamental law in how we see ourselves internationally. Yet there is absolutely no real political oversight or direction to that specific subject. It is a sub- component of the Department of Justice, the Canadian International Development Agency, the Department of Foreign Affairs and International Trade, and other ministries that tend to move these things into the bureaucracy. These organizations do not necessarily get the focus and the priorities, let alone moving in contentious areas that need political guidance, such as ratifying a new convention.
As we move into this new, post-Cold War, complex and ambiguous era that we are in, it behoves far more political oversight into the content of our evolving concerns in regard to human rights and their applications. Hopefully, committees that do not have an executive power, which can raise things and which we hope to influence, can give more political commitment to this subject.
The Chairman: You have eloquently stated what we have put in our report, that at some point we recommend that the governments, both provincially and federally, take the matter of human rights legislation seriously from an international perspective. If we sign agreements, how do we implement them? However, we have gone one step further, saying how the process should be commenced and brought through. You are talking about political will. We have also recommended parliamentary will.
Senator Nancy Ruth: Everyone always talks so highly about Canada and its equality rights. They refer to the Charter, sections 15.1, 15.2 and 28. They talk about the provincial human rights commission, but in reality, as I understand it, there is no civil law to which a citizen could address an inequality, a discrimination, in Canada.
How would being signatory to this convention increase the push to make parliamentarians look at the fact that we have no equality law in this country? Do you understand what I am talking about?
Ms. Stebbing: Yes.
The Chairman: I want to make sure I have it.
Senator Nancy Ruth: You can sue governments if you do it under the Charter, but it may not be a government you want to sue.
The Chairman: You are saying that the Charter addresses the governmental and that is what is intended.
Senator Nancy Ruth: There is no civil law for equality rights in this country.
The Chairman: Would any of the students or the professor wish to reflect on that?
Senator Nancy Ruth: It is wonderful to see you all here, too. This is the future.
The Chairman: Does the system, the Organization of American States or the court, address the civil aspects or are they simply the state to citizen, which is what our Charter is?
Mr. Forcese: To clarify, you are talking about the prospect of a human rights remedy against the private sector, not just in relation to government.
Senator Nancy Ruth: Yes.
Mr. Forcese: To some extent, we have that with our provincial human rights laws.
Senator Nancy Ruth: You have to go through that maze and it is controlled province by province. There is no federal law.
Mr. Forcese: It is true; there is a federal Canadian Human Rights Commission, although with a fairly limited mandate in relation to companies falling within federal jurisdiction.
To answer your question, there is a fairly old case law now indicating that those provincial human rights bodies have effectively displaced the prospect of a common law civil cause of action for discrimination. In their wisdom, the provincial legislatures have created this apparatus that displaces any existing common law concept.
You are right; there is no civil cause of action for discrimination per se.
Senator Nancy Ruth: It seems to be an issue. People like Professor Catharine MacKinnon at the University of Michigan think it is appalling that Canada does not have such a law; and she has worked with our Charter here when she was at Osgoode Hall.
Mr. Forcese: In terms of the specifics of what might be available under the American convention, I do not know that the American convention would necessarily compel us to develop a common law tort of discrimination.
To give you an example of where these international proceedings can have a bearing on remedies available to Canadians, a notable example is torture. Of course, we have a UN Convention Against Torture. A UN body is tasked with reviewing country performance under that international treaty.
Most recently, Canada was condemned because of its State Immunity Act, which precludes lawsuits being brought against states, when those states are torturing entities in Canadian court. The UN Committee Against Torture said that Canada has an obligation under the UN torture convention to provide remedies for torture even in circumstances where that torture is undertaken by a foreign state.
The government has not yet responded, but an international body, in response frustration at the Canadian level to remedies available to Canadians who have been injured by foreign governments, has responded and said Canada, you are not compliant with your international obligations because of this bar you are putting in the path of people suing and recovering damages.
A similar thing might be available under the American convention. What the American convention might provide is another place where Canadians can go when they are dissatisfied with domestic political and court remedies to encourage Canadian governments to think outside the box.
Senator Carstairs: Ms. Stebbing, you mentioned in your introductory remarks that the two glaring omissions to the signatures on the convention are Canada and the United States. In your readings and in your research, do you have any sense that the United States will ever sign on, in that they have not been willing to sign on to the World Court? I would like the benefit of your research on this.
Ms. Stebbing: I did not get an inkling that the United States is willing to sign on. I would say if the U.S. was going to do something, it would join the ACHR but they would not give jurisdiction to the court. I do not think that would ever happen, but signing on to the ACHR could happen.
They have the exact same issues that we have outlined with their laws with us. They would be looking at the same kind of interpretive declarations. They would not sign on wholeheartedly, saying that they are fine with everything.
The Chairman: The United States makes a point about its size, whether you want to use the term superpower or otherwise, which works into their assessment as to whether they want to submit to international jurisdictions. In your readings, did you find that was one of the reasons given by many other countries in wanting Canada to come in — to help the other countries, which are small or medium-sized countries, band together to get consensus about international approaches. Therefore, they saw Canada going in from North America as being very helpful, and perhaps in the long run being more persuasive with the United States in our hemisphere.
Ms. Stebbing: I have to clarify that the opinions are from authors from those countries, not the countries' opinions per se, because I do not have access to the governments' thoughts.
There is a will to have Canada join for some of the reasons you have outlined — that it will help. Countries also look to Canada because we have this great human rights system; we have the Charter and things like that, and they look to our expertise. Whether we provide that because we have joined the ACHR or we provide that as intergovernmental assistance is neither here nor there.
It will be more legitimate having Canada and the United States sign on. Having the two biggest countries in the organization not sign on causes problems. When you look at other regional documents, the European Union has a document similar to this and all of the EU countries have signed on. They are doing this, and yet Canada is outside the OAS human rights systems basically. That makes the systems not as legitimate as they could be or as good and productive as they could be. Authors from Central and South America point that out and do have a will for Canada to join because they think it will help.
The Chairman: There is also a move to have regional systems that reinforce the World Court and the United Nations system. For example, the European Court of Justice and the African Union have their systems. In your research, was that one of the other reasons to have Canada in — that it would complete a regional system?
We will deal with the United States separately, but we would bring the laws into line, bring some consensus, which would then be the same. In other words, we are looking to develop an international code and standard, so that a region does not go off and say, we do not adhere to those rights, or we look at them differently. We want to build slowly some consensus on human rights internationally, and it starts by getting that consensus regionally.
Ms. Stebbing: I agree with that; and as I mentioned in my introduction, the ACHR is arguably the most comprehensive one. It is more comprehensive than the European Union one or the African one. I agree that without regional consensus, how can we go one step beyond to get the world consensus, so this can be a global piece of work that every country abides by.
If you take the U.S. aside, it would help to complete the system. We have 25 of 34 right now; not many are missing. It would complete the system if Canada joined. Also, I think it would help to get the last few signed on — perhaps not the United States, but the others in the system.
There have been two countries that they thought of denouncing. Canada tried to put their voice in, but they said you have not even signed: How can you tell us not to denounce if you have not even signed it?
Ms. Jiwani: I wanted to add to that as well. You mentioned the smaller countries looking to Canada for a more standard approach. There is a lot of discrepancy between the countries. In ratifying the convention, it makes our domestic law something that these countries can look to to help negotiate between them when they are thinking of denouncing, or even to improve their own domestic laws when there is a discrepancy.
Senator Nancy Ruth: My immediate response to what you said about those states saying, Canada be quiet, is called trade, and that is how you started this argument. What is the role of the trade unions in all of this and how are they pushing here in Canada for Canada to be signatory? Historically, they have been seen as a counterbalance to the nastiness of the corporation.
Ms. Stebbing: In my research, either I did not look for it or I did not find it. It is something else I can look for unless my professor has an answer he would like to give you, or one of my other members.
Ms. Mitsios: Picking up on something that my colleague said, in terms of trade unions, we did not find a particular perspective in relation to trade unions. One thing we did find in our research was that the American Convention on Human Rights is distinct and thought of as more comprehensive because, when it was negotiated, the convention took into perspective the developing countries and how they see rights. Often that perspective includes things such as economic rights and social rights. In that sense, Canada, as a middle power, giving more political will to the American Convention on Human Rights, could help build a consensus between, for example, the Americans and countries in Latin America, South America and Central America, as well as the different perspectives they bring to this particular convention.
The Chairman: We have come to the end of our time. I thank Ms. Jiwani, Ms. Mitsios, Ms. Stebbing and Mr. Forcese for coming. I must say that we will grade you with an A. We have been studying the convention on the rights of the child and, while you do not fall into the definition of a child or teenager, you are young but also accomplished, and you have brought a perspective to this table. I think we should encourage bringing in more students to dialogue with us.
Senator Munson: You sound like a judge.
The Chairman: We always respect the professor's approach, but from time to time it is good to have students. We thank you for coming and bringing forward a renewed vigour on how we should approach the Inter-American Court of Human Rights. Your suggestion of perhaps bringing in the Department of Justice and the ministers responsible for this issue at this time would be timely. We thank you for your research, for the time you have taken here, for your eloquence on the topic and for handling all questions from senators.
Our next witness, Ms. Kathy Vandergrift, is chair of the Canadian Coalition for the Rights of Children. We would like you to make a short presentation and then we will go to questions.
Kathy Vandergrift, Chair, Canadian Coalition for the Rights of Children: Thank you very much for this opportunity to speak to you about the important work the committee has done.
I had the chance to listen to your last discussion. This is not an official position of the coalition. Over the years, I have participated in many of the civil society dialogues related to the Americas, and during the last two civil society discussions prior to the meetings of the Organization of the American States, the main request of our civil society colleagues in the other countries was that Canada ratifies this human rights agreement.
In the last few years, Canada has been a strong sponsor of the democracy cause under the Organization of American States. Those countries are often interested in deepening the understanding of democracy, and that is partly human rights and very much children's rights. Some of the Americas mechanisms have been fairly effective on children's rights and some of the countries actually have some fairly strong initiatives on the rights of children. From the civil society side in the Americas, this has come forward. I want you to know that.
Within civil society discussions in Canada, there are some women's groups that have concerns. If you are pursuing a study of that subject, you may wish to contact some of them. I will not speak for them, but perhaps you will want to hear from them.
I am here today to discuss three topics. First, we want to express strong appreciation for the committee's interim report on implementing the Convention on the Rights of the Child. We are here to encourage you to follow up on those recommendations in your final report. We have additional items that we would like to ask the committee to consider as a way of moving it forward. First, the findings of the committee parallel our findings in terms of the need for Canada to have stronger mechanisms to implement the rights of the child in this country. The coalition has been part of some of the monitoring exercises and part of promoting the Convention on the Rights of the Child and we feel Canada needs those stronger mechanisms.
We strongly support asking for a law that makes the Convention on the Rights of the Child part of Canada's law and suggest that you may consider adding to that some kind of process for a review of how we can bring the existing legislation into compliance. I know that will be one of the hesitations, but if you take some time, it does not have to be an obstacle but an opportunity.
We are aware of the concerns of doing this in the context of federalism. I encourage the committee to see that as an opportunity and not an obstacle. Many of the rights-based mechanisms offer tools to allow for diversity across the country and at the same time still address fundamental values like freedom from discrimination, and equity concerns. Moving to some of these rights-based mechanisms could improve federal-provincial relations. Part of that new law must be greater public reporting and transparency. We appreciate that theme in your report as well.
We encourage you to continue down that path and to consider a process that would review the compliance of law with the convention much as has been done with women's rights. That process should not just be bureaucrats but include some component of parliamentarians and public.
Second, we appreciate the strong mandate for a commission in the report. We would ask that you may consider adding a complaints procedure. There is provision under human rights mechanisms for a complaints procedure. It can allow for issues to come forward and be dealt with at an administrative level prior to people needing to take the very expensive route of court challenges. Canada could clearly resume leadership by considering a complaints procedure as part of the commission proposal.
Third, the Coalition for the Rights of the Child will certainly be promoting the recommendations in your report. We sent you a fax sheet that we are sending out to child rights oriented agencies across the country. We have sent a letter to Prime Minister Harper outlining another rationale for your recommendations, and that is Canada is congratulating itself on being appointed to the new human rights body at the UN. Part of what is being asked of members of the new Human Rights Council is that they lead the way in the implementation of the international conventions within their own countries. If Canada is to be a member of the Human Rights Council at the UN, it needs to look at how it is implementing the Convention of the Rights of the Child in Canada. Then of course we would like to ask Canada to show some leadership in making sure the rights of children are considered within the new Human Rights Council. That is one of the requirements of being a member and they will review every member. This is another rationale that you can add to your subsequent report. Finally, as I mentioned, the coalition was revitalized over the summer. We hope to engage in advocacy in launching a new monitoring process, starting now to prepare for Canada's next report in 2009.
We are informed that the Committee on the Rights of the Child will increasingly look at the question of what mechanisms are in place in a country to implement the convention. We will be focusing on that also in our monitoring activities, starting now and we hope to be ready for January 2009, when Canada reports again. This time we hope to implement a strategy for advocacy while building support in Canada, and at the same time, looking at a strategy for monitoring.
I hope you will see us as allies on the civil society side as you try to advance the issue through your committee's work.
The Chairman: Thank you. Perhaps you can give the committee and the public an outline of the work you do at the coalition.
Ms. Vandergrift: The coalition is a national network of organizations concerned with promoting the Convention on the Rights of Child in Canada and participates in monitoring of its implementation in Canada. There is a right under the Committee on the Rights of the Child to present alternative reports by civil society organizations in the country. The coalition did this on two previous occasions, and that is the process we are looking at doing again. Usually the larger child rights organizations are members, and we get the word out through them. The new board has 15 very active members, and we are committed to expanding our activities over the next two years.
Senator Nancy Ruth: My question is not just particularly about the convention on children but more about Canada and all of its conventions. You talked about outcomes. I have seen how some Canadian women have responded to the CEDAW agreement. Many have shared their analysis of what has not happened. I cannot remember having read what actually did happen. Was there any movement of change, even though it did not eradicate poverty, for example? Do you see a place in all these conventions for a measurement of outcomes rather than just saying, ``You did not make the big change we hoped you would?''
Ms. Vandergrift: When the coalition monitored Canada's performance the last time, the title of the report was, How Does Canada Measure Up? We tried to balance accomplishments and difficulties. Something as broad as the Convention on the Rights of Child can lead you to a very large document and the committee does not have a lot of time to consider it; the government prepares that kind of comprehensive report. Of course, the government report always looks glowingly to what we have done. The committee prefers that, on the civil society side, we point to some of the areas that need further exploration.
I suggest that next time it would be important for Canada to follow up on the comments the committee made the last time and be able to show that these have, indeed, been addressed. Members of our organization are pursuing some of these in discussion with departments and we want to be able to say, the next time, that this matter has been addressed. We want to cite both progress and areas of difficulty.
The Convention on the Rights of the Child has something in it that we have not used nearly enough in terms of some of the concerns of provinces, and that is this notion of progressive realization. It does not say you must do everything all at once, but it does say you should at least be moving forward and not backward on major indicators. You do set targets and measure progress.
When Canada developed its national plan of action to implement ``A World Fit for Children,'' there was discussion of concrete targets. We are short of really concrete targets, but certainly setting targets is a way to move forward.
Senator Nancy Ruth: You like targets.
Ms. Vandergrift: Yes and then moving forward with an action plan to meet those targets and to continue moving forward. For example, on the issue of child poverty, we know that some countries that have tackled that issue that way have made real progress. I think you know that we have not made a lot of progress. We think that is a way to proceed, and certainly the action plan allows for that as a next step.
Senator Nancy Ruth: How do you see the complaint procedure working?
Ms. Vandergrift: One could look at all complaints. One might also look at a more limited range coming to the commission. There is a complaints procedure proposed or developed under CEDAW and some models that can be looked at. The general concept is that groups of young people who feel their rights have been violated in a systemic way could have access to bring that forward and be given an answer about that short of a full court process. I imagine it would take some work. There would be a concern of too many complaints, I am sure; however, I am convinced we could make it work.
Perhaps I can give you an example out of Aboriginal issues. Some of you have probably heard about the case of the young Aboriginal kept in active care in hospital, tossed between federal and provincial jurisdictions to pay for at-home care. If a case like that were heard before a group, I think most parliamentarians or people would say, ``Cut through this and make sure this child is in the right place,'' and then go sort out the federal and provincial issues. It argued for putting the best interests of the child first and having a mechanism to cut through the red tape to do that. That is how we see that working. Maybe it needs to be limited in scope first, but we would like to go in that direction.
Senator Carstairs: We had a rather interesting case presented to us at a reserve community in Manitoba in which a child was being kept in hospital simply because they could not get authorization for a puffer. We know of more cases like that. It is amazing that they would occupy a $1,200 hospital bed for lack of a $108 puffer.
I am particularly concerned about the report from the United Nations on October 11 with respect to the impact of violence on children. They do not identify any country by name but it is very clear that Canada is in violation of many of the recommendations — everything from the corporal punishment of children, to the labour laws and the incarceration of children at extraordinarily high levels. Is your group studying this particular report, and will you be making recommendations in line with the report that was presented to the General Assembly?
Ms. Vandergrift: Yes. Lisa Wolff from UNICEF is one of the members of our board and has been very active in the preparation of this report and its launch in New York. It is my understanding that there is an event planned in November which will launch the report in Canada. We hope that by the time it launches we will also have a more detailed regional report. I think Canada and the United States were looked at together.
We appreciate that some of their recommendations are similar to this committees recommendations in terms of the need for some mechanisms to address these issues. Many of our members will be participating in the events in November in Vancouver that will focus on this particular report, and our board already has as one of its items our own follow-up of the report.
Senator Carstairs: I understand the launch will take place November 19-20 in Vancouver.
In terms of the complaint procedure, obviously the reluctance of governments will be that this is just too broad, and within six months it will be so bogged down that it will not be able to come out with any reports. If you and your committee were designing some limitations, could you envisage something where you may say that in the first five years, you would take complaints on issues such as violence against children and Aboriginal health issues?
Have you a vision for what you may think of as a limitation?
Ms. Vandergrift: I would like to take that back to the group. Certainly we are keen to work with you as we try to implement these next steps, both the law and any mechanisms under it to see how we can help to make them effective.
I would look at the situation of children's ombudsmen at the provincial level. I expect in many provinces there was a great concern that they would be overburdened as well. Some of them are, but they have found ways to work through the burden. I cannot imagine working without a federal mechanism as well. As you know, some of the provincial ombudsmen have more limited mandates than others, and that is one of the issues. I would be reluctant to limit the scope other than, as you say, to get us started let us look at this and then the other, but not to limit the mandate for fear that rights might be violated.
Some members of our group are looking at other federal states, as I think you started to do as a committee as well. By the way, someone was asking about mechanisms for rights of children in the Americas. Argentina has a mechanism, and it is a federal state. That is fairly interesting.
We are also looking at other federal states to see what we can learn from them to cross that barrier, which seems to be one of the obstacles that we have in Canada. You will be hearing more about that from members doing that work.
Senator Munson: I have just been reading the Convention on the Rights of the Child over again, as Senator Landon Pearson told me to do many times. We ratified this business in 1989 and it is now 2006. I am just curious what the face of children would look like in this country if Canada had gotten off its collective rear end and implemented this within five years. It is now 2006 and we are still lagging behind many others. What would have changed in the lives of children? Could you give some specific examples of what has happened to Canadian children? We have just heard an example from Senator Carstairs. I am probably asking questions that have been asked a thousand times.
Ms. Vandergrift: My first question would be how much time do you have? There is no doubt that the members of our group think that Canadian children would be much better off if we had moved to implement the convention with some serious mechanisms early on.
Senator Munson: Do you have specifics?
Ms. Vandergrift: We have been working on the issue of separated children in Canada. We have found rather tragic examples of children getting lost between provincial child welfare systems and the immigration system.
For a number of years we have been advocating for a national policy to deal with separated children. We took that complaint to the Committee on the Rights of the Child, and you will find in their report that Canada should have that kind of policy in place. It is one concrete example where we need a more serious commitment.
Certainly those who work with children who move from foster care to juvenile courts and prisons bring forward many cases where they feel the rights of young people have not been fully respected. Certainly the children's rights advocate in Ontario has pursued some of these and, through her work, has improved them. That is another area.
The subject of Aboriginal rights is a large area. I thought this notion to put the best interests of the Aboriginal children first and then sort out which is jurisdiction responds to it would have been a mechanism that would have fit under the Convention on the Rights of the Child and would assist those children.
In children's health there are a many examples, and I would come back to child poverty. If we were serious about the Convention on the Rights of the Child we would have seen an improvement by now in the number of children still living in poverty.
Senator Munson: In our provincial education system, do students understand this? Do students know about this and is it part of the curriculum? We went across the country and I had the impression that people knew what we were doing, but beyond the scope of people like you at the grassroots, I do not think anyone had a clue about the rights of the child.
Ms. Vandergrift: One of the obligations of states parties under the Convention on the Rights of the Child is to promote public awareness and education. That is one of the things that must receive more attention. Certainly we do some of that work; we have a tool kit for communities in monitoring, our members engage in workshops and have developed curricula for different age groups in schools, but there is nothing that is systematic right now.
Senator Munson: Should there be something systematic?
Ms. Vandergrift: Yes, there should be something systematic in terms of educating the public. For example, it is not a required part of any curriculum. Certainly education and promotion is part of implementation and we believe it needs a much stronger focus.
Senator Munson: What do you think it would take to push the government over the top of the barrier? There have been senators around for some time who have been pushing this convention. What will it take to push the government?
Ms. Vandergrift: There has been some progress. We realized that when it was first adopted there was a sense that it was an ideal we should aim for, not something we should comply with as a measurement of the bottom. More and more we are moving to that position, and that is happening in other countries.
What will it take? It might take embarrassment in the international community. Canada will not be able to continue to say it is an international leader and I think your committee found evidence of that as well. Governments will not like to be in a position where Canada is not seen as a leader. That will be one kind of international pressure.
We will not be able to continue to promote some of the issues that this country has promoted. I work a lot on promoting the protection of rights of children threatened by war. If we are going to continue to do that and insist that other countries respect the rights of children, we need to show that we are doing the best job we can in Canada. When we go abroad, certainly the situation of Aboriginal children gets brought up to us on the civil society side: Your own country is not doing so well, why are you here telling us we need to do a better job?
I think it is a push-pull. Certainly we will be dedicating effort to try and build support from the bottom, along with you. There is also a push from the international level, and those two factors hopefully will come together.
The Chairman: Both Senator Nancy Ruth and Senator Munson have talked about implementation and the strategies, and reference was made to women's issues. In organizations in civil society ``organized'' is important; however with the women's movement it affected women who were voters who then coalesced around organizations to put on the pressure.
How do we get the attention of the public and politicians to understand that the children have rights now, not in the future? They may be progressive, so is there a different strategy? We seem to be employing the same strategies no matter what the issue is around human rights. With children's rights, do we need to come up with something more innovative to put the issue on the table for politicians and the public?
Ms. Vandergrift: Politicians do respond to young people, I think. I mentioned in our fact sheet that there is a real concern in this country about engaging young people in the political process. Each election, politicians comment on the lack of participation of young people in the political process. We say the time to start is not at election time, it is to start earlier with engaging students. You talk to young people about rights and responsibilities, which are part of their civic life. If we want to see young people engaged in the political process, certainly moving many years down and starting with rights and responsibilities is a good way to do that. We can all think about more innovative ways.
Perhaps we have something to learn from the work we do in other countries through international development. We need to see how children take the lead in development in some of their communities. We could unleash bundles of energy in this country for the common good if we were to use some of the same strategies that we use in international development by working with youth and young people and engaging them in development. That potential exists.
I do not want to come back to this bugbear of the federal-provincial issue but it has been part of the barrier in this country. That is why I emphasize that rights-based mechanisms could help us to find a solution to that problem. We should not allow that to continue to be an obstacle to using rights-based approaches in this country.
The Chairman: You talked about rights and responsibilities tied to civic responsibilities. Do we need to emphasize that every right carries responsibilities with it and how would we do it in the context of children?
Ms. Vandergrift: Rights and responsibilities are the two sides of the coin; you cannot have one without the other. That is what we try to bring to this discussion with young people. Save the Children has a wonderful little book where on one page it has the right and on the other page, it has the corresponding responsibility. It is prepared for kids and is a wonderful tool. I wish I had some of those books with me now. We need to engage young people. They need to understand that being a citizen of Canada is about rights and responsibilities.
Senator Dallaire: When I came back to Canada from overseas with my interest and concern about war-affected children, I was able to coalesce much of my thinking because two women, Senator Landon Pearson, who is here today, and Ms. Vandergrift mentored me. Both of these women helped me to understand in a great deal of depth and scope. This committee has heard from some extraordinary witnesses and it would be wise to stay in touch with these witnesses when the committee prepares its report.
Canada has some terrible aberrations. Some children go to school hungry. According to criminal law, we still permit physical abuse of children in families. Some people do not seem to grasp the concept of children's rights. At a conference in Santa Barbara, I had a discussion with Mr. David Frum, who said that he would never agree to that because he could not see himself being brought to court by his children because children have rights. That speaks to the whole warping of why we want to move in this arena.
This brings me then to the impetus in regards to the convention and its application. The committee has proposed a commissioner for children's' rights, potentially expanding that capability with an ombudsman, et cetera. It is my opinion that a commissioner would have no power.
Do you believe that this should begin with the legislators being committed to implementing, overseeing, and monitoring the legislation versus processes within government taking on that job?
Ms. Vandergrift: Thank you for your question. Our first recommendation is that the committee recommend passing a law making the Convention on the Rights of the Child part of Canadian law. Lawyers who work on behalf of children tell us that Canada's courts are beginning to refer more to the UN Convention on the Rights of the Child. However, because it is not part of Canadian law, they do not need to consider it in the same way that they consider provincial child welfare legislation, for example. Yes, our first request is that you make it part of Canadian law. That is the first step. Then, you need to have a range of mechanisms. Although the courts will take the subject-matter more seriously and lawyers will use the legislation, you need some mechanisms short of the court as well to deal with issues, in particular in relation to children. Involving children in court processes is difficult. That is where the role of a commissioner and the complaints process comes into play. We would never remove their right to go to court under a law that would be part of Canada's law.
Senator Dallaire: Commissioners and processes are often derived from laws, which provide the base. People who initiate laws are not the bureaucrats, although often they might provide the impetus. It is the politicians who legislate and, ultimately I do not see any way around this when even in our liberal democracy we do not have a dedicated political head to conduct the advancement of rights in this nation.
My second question comes back to Canada and its position in respect of the UN Convention on the Rights of the Child. Does Canada, a leading middle power in the world and a recognized liberal democracy with a Charter in its fundamental laws, have any leadership role in respect of children's rights? Does this country have any specific initiative, impetus, effort, or priority in this dimension around the world or at home?
Ms. Vandergrift: To your first question, senator, in our fact sheet we suggest that the reports from the monitoring mechanisms should go to a parliamentary committee. I agree with you that there should be a parliamentary focus, whether it is a minister responsible for human rights under Foreign Affairs or CIDA. Sometimes that presents a problem because the responsibility can get tossed back and forth between the two. It would be important for there to be a parliamentary oversight committee. Currently, the reports on Canada go nowhere. They should at least be looked at by a parliamentary committee — perhaps a joint committee of the two Houses. Such a committee could take the report seriously and ask departmental officials to answer some questions on why we do not have a national policy on separated children. We have been working on such a policy for more than five years. It is doable but you are right, it is not doable without the politicians leading the charge.
I would say that Canada's international leadership is mixed. We have leadership in a number of areas but my concern is that other countries are moving ahead in terms of the formal mechanisms, and the process of a special session on children with the action plans, mechanisms to implement those certainly move that forward. Canada is beginning to lag behind. Certainly, Canada is working at the UN Security Council on protecting the rights of children threatened by armed conflict. I hear from my NGO colleagues that Canada is receiving great appreciation for its efforts in keeping that issue on the agenda and for continuing to push it forward.
In the area of the sexual exploitation of children, people in Canada have provided strong international leadership and that is appreciated. I also hear questions such as, ``where is Canada going?'' The concern is whether we will begin to lag behind. If we want to retain a leadership position and we want to make the new UN Human Rights Council work well, then we need to step up to the plate.
Senator Dallaire: Internationally, our reputation is often affected by work that we expect to be done in the areas that are frequently relegated to the bureaucracy. Ultimately, our credibility as a power in the world is affected not by the decisions of the politicians but by the fact that the bureaucrats are doing the work but not necessarily getting the guidance to do so.
Again, who we are internationally is not a reflection of what the bureaucrats are doing but, in fact, how the politicians are imposing their leadership and priorities on the bureaucrats so they can accomplish a full spectrum of work.
I would like to touch on war-affected children. A recent report stated that we might be training youth under the age of 18 years in security matters in Afghanistan, which includes the bearing of arms. This is blatantly against the optional protocol to the convention.
Although some cultures identify girls at 14 years of age as adults for marriage and so on, can we actually let ourselves be influenced by cultural differences and accept those differences as waivers on the convention?
Ms. Vandergrift: To answer your first question, there is room for officials, but it is very important to have political leadership. We are seeing that the engagement of political leaders and diplomats at senior levels certainly makes a difference in the issue of children in armed conflict. We need both. We need officials working at it, but we also need to have political leadership.
Right now, my mind is very conscious of the situation in Uganda where peace talks are occurring, and other governments will hold their feet to the fire to complete those peace talks. There are thousands of children whose well- being is at stake. I cannot help but mention that example because it is one this group has dealt with previously.
In answer to your second question about the optional protocol, on the civil society side we are beginning to look at Canada's performance with respect to its agreement under the optional protocol. I cannot bring you conclusive evidence right now, but I am concerned. The committee also registered some concern about what is happening in Canada with the recruitment of 16-year-old youth. They are not deployed until they are 18 years of age, but they are recruited at 16 years. With increasing pressure to recruit, what is happening to that 16- to 18-year-old group?
When we tried to monitor this issue, we could not actually obtain numbers for the 16- to 18-year-old group because the military kept records of the 16 to 19-year-old group and did not really want to provide the numbers for youth under 18 years of age. I think they should provide that information in order to comply with the law. I think we must look very hard at what is happening in our own country. Then you ask what the case is when training members of an Afghan army. I think those of us who have worked in the child rights field always try to work with the culture within which we are operating. You can usually find voices in that culture that side with you on child rights. It is rare that you must totally forsake the international conventions. The problem lies more in how you go about implementing them.
Yes, we are concerned. We are trying to get some hard evidence. There was, as you know, a program for Afghanistan to demobilize child soldiers. A fair bit of money was spent by UNICEF. The concern was re-recruitment. That program sort of wrapped up and it is discontinued. That is the best evidence I have now, but I would like to confirm that.
There is some concern that some of the Taliban soldiers are as young as 14 years of age. How is Canada operating with that knowledge? How does that change our understanding of our engagement in Afghanistan?
We must explore the area of the effect on youth involved in the war on terrorism and anti-terrorism efforts. That is something we need to come to grips with more closely. That is a big subject.
Generally, I think you will find ways to work within the culture to continue to protect the rights of children.
Senator Dallaire: I was an assistant deputy minister on Canada's ratification on the optional protocol. I do not want to get into that side of the exercise on my position within defence.
I have a question regarding Inuit and First Nation children in a program called Junior Rangers, in which youth from many communities are brought back to their roots by taking on the equivalent of the cadet movement. That program is oriented towards leadership, civil responsibility and civic responsibility, not necessarily rights. It also returns the youth to the fundamentals of their culture.
Do you think a more determined youth-specific structure is useful, or would that be an imposition on their rights?
Ms. Vandergrift: In fact, that program along with the cadet program is not what the optional protocol is about; that is outside of everything.
When we were in debate over Canada's optional protocol, many of us had sympathy for the argument that in order to recruit a voluntary army, you need to approach young people when they leave high school. In some parts of this country, that is at 16 years of age. Many suggested using those two years to instruct them on peace-building activities and a whole range of activities so you would not lose touch with them, while keeping them out of regular military training programs. Those were some of the options people wanted considered at that time.
There would be kind of a bridge program for the 16 to 18 year olds, where at 18 years of age one would enter, if they wished, into full military training. That is not what we accomplished, as you know. There are 16-year-olds going directly into military training. I think protecting their rights in that 16- and 17-year-old time frame is something we will want to look at closely in the next reporting period.
Senator Nancy Ruth: At some point, you used the word ``systemic.'' I assumed it was in reference to discrimination. I am wondering how you sort out the individual rights of the child against the systemic problems around poverty.
I have been a bit concerned that there is no gender differentiation in our report. For me, there are different issues between girl children and boy children. I want to know what you think about that issue.
The Department of Justice will be introducing or has recently introduced a three-strikes-and-you-are-out criminal punishment. My understanding is that Elizabeth Fry and other groups are very upset about the impact on young Aboriginal women. Would you care to comment?
Ms. Vandergrift: I used the word ``systemic'' in terms of your earlier question. If we had to limit a complaints procedure — and I know that many people would be hesitant about any limitations on a complaints procedure, so I need to preface it — you may want to look at indicators that are prevalent if we had to make choices about priorities. That is what I was thinking about when I used that term.
For example, an Aboriginal youth falling through the cracks between federal and provincial health care systems happens repeatedly. That is what I mean by ``systemic.'' When one has several complaints of that nature, it points to a problem that warrants perhaps priority time-wise attention to the individual child. I never want to diminish the rights of the individual case, which often points out other problems.
In terms of gender differentiation, that is very much a part of the Convention on the Rights of the Child. Certainly in our work on children and armed conflict, it has become a very strong theme to look at differing impact on girls. In Canada, we clearly need to talk about the differences between girls and boys.
I think there is a growing awareness of age differentiation. Senator Dallaire referred to that issue. It is different when they are young adolescents. Zero to 18 years is a broad range in age. We must begin to differentiate in understanding what participation rights mean by gender and age.
I do not wish to comment directly on behalf of the Coalition on the three-strikes-and-you-are-out law.
If the Convention on the Rights of the Child became Canadian law, we would hope part of it would be an impact assessment on young people as part of the process. We hope that someone would look at that legislation and bring to the table their assessment of the impact from zero to 18 years of age. There are processes in this government to assess impact on other things. They can do such an assessment. It would then become part of the decision making package. In international development, for example, some of us are advocating that, for every country where the population under 18 years is 40 per cent to 50 per cent, CIDA's program should look hard at children's rights. We will not succeed in developing these countries if we leave out 40 per cent of the population.
Similarly one could ask in Canada: Are we looking at a child rights impact assessment as part of the legislative review process?
Senator Carstairs: When we were in Regina, I heard a phrase for the first time that kind of set things into perspective for me. The witness said, ``We have to start looking at children as human beings not human becomings.'' It seemed to me that is how we do look at children, that they are not full human beings, they are human ``becomings.'' Is that the reason why we have such difficulty in getting the political lens to look at children's problems?
Ms. Vandergrift: A central concept of the Convention on the Rights of the Child is that the child is actor; the child is subject, not object. That is the first aspect. For a long time in history, children have been seen as objects and possessions. No, children are subjects; they are actors in their own right. The more we understand the potential of children, the more we can shift that discussion away from needing to shape them if we understand that they also help to shape our communities. One can use that potential positively as well.
For me it is more around subject, object, actor, and so on. This is not a position of the coalition, but we attended an academic conference at Brock University where some of our more abstract thinkers are saying that child rights are about the becomingness in all of us. There is an element in that where a child is a ``becoming.'' That is what is maybe seen as special about being children. Childhood has been conceptualized in many ways, and this academic thinker was saying, ``That is what is very special about children that we need to protect, namely, the becomingness. We should not put the age of 18 years on that, but we should allow it to go further.''
For me, subject versus object is at the heart of some of the debate and at the heart of some of the resistance of child rights in the country; that is, seeing children as objects to be moulded rather than as actors to be engaged in helping to develop our communities.
The Chairman: That has been the dilemma from the adults. I was part of the family court system, a legal and a community system where we said that children could not handle all their rights. The debate was around where to set an appropriate age. The discussion went further. You become an adult for purposes of voting at one age; at another for driving, for drinking, et cetera. The debate was very much that a child could not handle all the rights that an adult has. We were in the process of where to start moulding and make them fully accountable, bearing in mind some would prefer to put it at 30 years of age or 40 years of age. It is a very individualistic thing. We are caught in that trap.
How do we reclaim the territory to say that children are human beings, as Senator Carstairs has said, but carry on that obviously they cannot handle all of the capacities of their rights? They are vested elsewhere; others speak for them; you are here speaking for them; the committee is speaking for them. Very often there is an adult speaking for a child. How do we bridge that gap? It is easy to put them as an object and say, ``We will turn you into this or that.''
Ms. Vandergrift: Why I think this convention is the one for Canada to start with if we want to get serious about the human rights conventions is that it is very holistic in that area. I often engage in debates with people who say that giving children rights will erode the rights of families. I ask them to read the convention. There are several paragraphs that explicitly recognize the important role of families and a child's right to have a family. When we are dealing in war- affected countries, it would be a huge thing if they would just go and fight for the rights of children to have their families.
The convention has at least nine paragraphs that specifically talk about the fact that a child develops within different contexts, not just the family but the community and the school. One of the most beautiful things about the Convention on the Rights of the Child is that multilayered aspect. It is a child as an actor but not as an individual alone against the world. It is a child within a network of supportive environments that progressively develop the child's capabilities.
Often people have not read the convention when they say that child rights will ruin parents' roles. They have not read it, because it works through that in a very thoughtful way. It does not denigrate the rights and responsibilities of parents to recognize that children also have rights and responsibilities.
The Chairman: That is a good point on which to close. You have put the child in the context of the family and the community. That needs to be stated often, both by this committee and elsewhere.
We thank you for the work you are doing and the fact that you have come to make comment on our work and to bring us new and further perspectives on children. I hope some of what you say will echo in our report further. I thank you for attending here this afternoon.
Senators, we have one small issue. I need a mover —
Senator Carstairs: I so move.
The Chairman: We had a transcript from 2:00 p.m. to 3:30 p.m. of the committee's public hearings in Edmonton on Wednesday, September 20, 2006. The motion would be to print using sequential letters to identify the participants; that is, participant A, B, C. As you recall, these were young people testifying. We do not wish to identify them because we want to respect what they were saying in a proper context. Is there discussion or agreement? We are all agreed?
Hon. Senators: Agreed.
The Chairman: Thank you. We will then adjourn.
The committee adjourned.