We must do more to ensure that the goals and principles of the Convention on the Rights of the Child are fully and meaningfully realized for all children in Canada… We need not only dream of a just and humane society – we can build it.[378]

The Committee’s investigations have firmly led us to the conclusion that the Convention on the Rights of the Child is not solidly embedded in Canadian law, in policy, or in the national psyche.  Canadians are too often unaware of the rights enshrined in the Convention, while governments and courts use it only as a strongly worded guiding principle with which they attempt to ensure that laws conform, rather than treating it as an instrument necessitating concrete enforcement.  No body is in charge of ensuring that the Convention is effectively implemented in Canada, and the political will is lacking

In our Committee’s discussions with the Committee on the Rights of the Child, members emphasized that implementation is key to making the Convention work, and that for Canada to claim that it fully respects the rights and freedoms of its children, it needs to improve its level of actual compliance.  As noted by Peter Leuprecht of the Université du Quebec à Montréal, the Convention has both a passive and an active component.  In article 2,

[t]he passive obligation to respect requires a state party to refrain from violations of the rights set forth in the convention. The obligation to ensure goes well beyond that; it implies an affirmative obligation on the part of the state to take whatever measures are necessary to enable children to enjoy and exercise their rights.[379]

The federal government needs to take the lead with respect to implementation of the Convention.

Using the Committee’s findings from the Interim Report as a building block, our Committee has concluded that the federal government does not have effective mechanisms in place to ensure compliance with its international human rights treaty obligations – additional mechanisms need to be put in place to ensure effective protection of children’s rights in Canada.  As noted by Lisa Wolff of UNICEF Canada:

[U]nless Canada takes specific steps to build more effective legal and administrative measures and mechanisms for implementation of children’s rights, they will languish in piecemeal legislative change dependent on the unpredictable goodwill of parliamentarians, in jurisdictional fractures, and in uncertain accountability…

Ratification was only the first step in the process of compliance and needs to be reinforced by a range of measures that will remedy any perceived consequences of hasty ratification and address evolving issues.[380]

In response to concerns expressed by witnesses across Canada and abroad, the Committee will propose measures to guarantee systematic monitoring of the Convention’s implementation in order to ensure effective compliance.  These include proposals for the establishment of a federal interdepartmental implementation working group to coordinate and monitor federal legislation and policy affecting children’s rights, and an independent children’s commissioner to monitor government implementation of children’s rights at the federal level and liaise with provincial child advocates.  The Committee also highlights witnesses’ emphasis on the need for awareness-raising with respect to both the Convention and the rights-based approach embedded within it.  Most importantly, through its recommendations the Committee seeks to strengthen the active involvement of children in all institutions and processes affecting their rights.

RECOMMENDATION 19

As the federal government has signed and ratified the Convention on the Rights of the Child, the Committee recommends that the federal government immediately implement and comply with its obligations under that Convention.

A.   EDUCATION AND AWARENESS-RAISING

1.      Awareness of the Convention in Canada

Our Committee has heard numerous witnesses express concern about the lack of awareness, both in government, in Parliament, and among the public, of the Convention on the Rights of the Child and the rights enshrined in it.  Throughout our hearings, we became aware that there is very little knowledge of the Convention outside academic and advocacy circles.  Even the reporting process to the UN Committee on the Rights of the Child has been unable to change this.  Lisa Wolff noted that in practice these reports make Canada accountable to the international community rather than to Canadians themselves.  She said that “UNICEF will know more about what Canada has said about Canada’s children’s right[s] than our own populous will.”[381]

In government, even among those dedicated to protecting children’s rights, knowledge of the nearly 20-year-old Convention is spotty at best.  The Committee has discovered that some government officials working towards the protection of children’s rights seem to operate in ignorance of the international tool at their disposal.  In many respects, the Convention is simply not used as a means or a framework to protect children’s rights.  Christine Brennan of the Office of the Ombudsman of Nova Scotia told the Committee that:

[I]n our educational campaign to provide education rights to government, youth and other youth-serving entities within the province, we discovered that 90 per cent do not even know that this Convention exists. These people direct the youth-serving systems of our province.

Nova Scotia has an advanced system compared to the rest of the country, but we are embarrassed to say that the provincial government departments, excluding the Department of Community Services and the Department of Justice where we are very proactive, do not know about the goals of the Convention on the Rights of the Child. As always, youth issues and rights are at the bottom of the serious issues in the country.[382]

Bernard Richard, Ombudsman for New Brunswick, who is also responsible for dealing with children’s rights issues, responded to a question concerning how often the New Brunswick public service and legislature use the Convention:

I would say rarely, if ever, and I was a member of the legislature for about 13 years. I do not know that I ever heard it mentioned in those years. Certainly we do not use it at our office. We do not refer to the Convention. We refer to our statutes and laws and rights, our Charter of Rights and the legislation here in New Brunswick. In my view, it is not used at all and not considered specifically…

Your invitation to me to come here has certainly helped me become more aware of the Convention, and it may be that our practice will change over the coming months and we will refer to the Convention in dealing with some of these cases, because I think it is an important tool that we have not been using in New Brunswick.[383]

Perhaps less surprisingly, children themselves were unaware of the existence of the Convention and the rights enshrined within it.  Across Canada, the Committee met with self-aware youth from a variety of backgrounds, most of whom had never heard of the Convention on the Rights of the Child before preparing for their meeting with us.  Their comments emphasized the importance of awareness-raising, and the significance of knowing one’s rights as a first step towards empowerment.  As stated by Megan Fitzgerald, a student in St. John’s:

[A]bout a week ago [I was asked] to come here [and told] I would have to read the Convention on the Rights of the Child. I was, like, well, what is that, because I had never heard of it before. I felt badly admitting that – because I am an elitist in my school. I am very involved in the school, I maintain high marks, and I try to be involved in the community. Yet, someone like me who knows so much about what is going on, at least in my community, knew nothing about my rights, as set out in the Convention on the Rights of the Child.

That is a big part of education and empowering youth. How can we feel motivated and empowered to implement our rights into our own lives if we do not even know them? That is something that we have to work on together – us as youth and you guys as the big shots. We have to work on that, so that we can be empowered to put them into place in our own lives.[384]

Recognized and understood by so few, awareness of the Convention only occasionally filters down to those it is meant to protect.  Although many children clearly understand that they do have rights in a general sense (as emphasized by Katie Cook in Fredericton, “As far as knowing about the Convention, I do not necessarily know that I have heard of that exact document, but we know we have those rights, especially as children. At least I do”[385]), witnesses from across Canada have told the Committee that this is not enough.  They have indicated that for the Convention to ever be fully and effectively implemented in Canada, the public and the Convention’s primary stakeholders need to know how particular rights affect their lives and how the non-observance of those rights may significantly alter their lives.  Witnesses emphasized that for children, learning about their rights is often a transformative experience.  As stated by the Committee on the Rights of the Child, when we as individuals are unaware of our rights, we cannot work to ensure that they are respected:

If the adults around children, their parents and other family members, teachers and carers do not understand the implications of the Convention, and above all its confirmation of the equal status of children as subjects of rights, it is most unlikely that the rights set out in the Convention will be realized for many children.[386]

This is particularly the case when official institutions charged with protecting children’s rights are not aware of the full array of rights and tools at their disposal.  Hawa Mire of GoGirls in Vancouver made the case, particularly poignantly, for more effective implementation of the Convention and heightened awareness among children and those protecting children’s rights:

The adoption of the convention and its very existence seems to me, a bunch of words written on a piece of paper, a lot of them have not been implemented in my life, and I have not seen any evidence of those rights actually affecting me. It is like knowing those rights are there, but also understanding that the system is not necessarily set up to protect me using those rights most of the time. It is also interesting when you consider the idea that those people that have those rights have no idea that they even exist.

Let me tell you a little bit about my own life experiences. Racism is a huge part of my life and a part of everything I have achieved or been denied. My skin colour is something I can never escape from, something I never want to escape from, and it is something that promotes others to place barriers in front of me. I am really lucky that I am stubborn and I am determined to break down as many of those barriers as possible. When I tell you that the rights listed on the convention are nothing more than papers to me, I am not just saying that. I feel that my life experience embodies that statement.[387]

2.      The Need for Education

On the basis of this testimony, our Committee has concluded that the low level of public awareness of the Convention on the Rights of the Child in Canada is an issue that needs to be rectified before we can safely point to effective implementation of the Convention at home.  As pointed out by Kathy Vandergrift, article 42 of the Convention calls for States Parties to “undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.”  This obligation has not been effectively carried out in Canada.

Echoing the testimony of Suzanne Williams of the International Institute for Child Rights and Development, our Committee notes that a well-resourced and comprehensive communication strategy is needed to disseminate information about children’s rights to decision-makers, professionals, front-line workers, and the public at large, including children.  Fred Milowsky emphasized that:

The shared understanding of rights and the use of the convention as a proactive planning tool by the provincial government is not likely to happen without increased public awareness of children’s rights and the convention. Awareness that rights exist is necessary to their realization.[388]

Yet even beyond the dissemination of information about the Convention, our Committee wishes to highlight the need to teach Canadians about the rights-based approach and about why children and the protection of children’s rights are so important.  Marilou Filiatreault of the Conseil Jeunesse de Montréal provided us with a vivid example of how children’s issues are so often pushed aside:

I attended a meeting this morning, in fact, in one area of Montreal to meet with the elected officials and to tell them that youth issues are important and must not be forgotten in their work. And they said to me: “Marilou, we have streets to repair and infrastructure to fix.” To use a young person’s expression, I told them that youth issues are not “in” these days…

But there is a lot of work to do to get that message across to adults. It is not just older people who are victims of ageism; young people are victims as well. I am an employment councillor, and employers often say: “Oh, but this person is young.” We need to eliminate that barrier.

So a lot needs to be done to create awareness among politicians and in the public about the place of young people in society and the need to provide them with real services.[389]

There are a variety of ways for such public awareness to take effect.   For children, specific programming can be added to school curricula.  The Committee heard some fascinating examples of how the Convention on the Rights of the Child is being used effectively in England to teach children about their rights.[390]  While some individual jurisdictions or teachers may have implemented similar programs on an informal level in Canada, very few such initiatives exist on an organized scale.  Youth appearing before our Committee also emphasized that they do not know about the resources, services and complaints mechanisms available for youth.  Joelle LaFargue, one of the young people who testified before the Committee in New Brunswick, stated that:

When I have trouble, and I feel that a right is being infringed, I usually go to either a teacher or the guidance counsellor. I was going to mention the Human Rights Commission, but I do not ever remember knowing how to get hold of them, other than maybe looking them up in the phone book.

Maybe that should be a more presentable thing that if you have trouble and someone is infringing upon your rights, there should be more information available that you can use this association… there is no information around school or around where I could have easy access to it.

That should be an important thing.[391]

To resolve this issue, school counsellors could be specifically provided with information about the provincial advocates and other resources in order to make such information more readily available to children and youth seeking help in their schools.  Hawa Mire also suggested that information about these services be made available in community centres for those more marginalized individuals who may not seek the advice of school counsellors:

Obviously, the easiest solution to getting young women to understand these rights and know of their rights is school-based education. However, the problem that lies behind such an easy solution is that the youth getting the information in the schools are not necessarily the youth that need that information. I think the solution lies in creating educational programs and services geared specifically for disadvantaged young women in neutral community areas. These are the children that need to understand the rights they possess because these are the children that our system tends to ignore and pass aside.[392]

Facilitating access to information about children’s rights can be a powerful instrument in transforming their lives.  Beverley Smith of the Care of the Child Coalition told us that she loves “the power kids have when they believe they have a right.”[393]

However, our Committee notes that parents, too, need to be provided with information about children’s rights as well as supports to ensure that they have the means to protect them.  Jane Ursel of RESOLVE Manitoba told our Committee that the whole philosophy around parenting education needs to fundamentally shift, and that information about children’s rights should not be provided in an adversarial environment or in a punitive manner, targeting parents of children at risk.  Joan Durrant of the University of Manitoba told us that all parents need this kind of help: “I think that we make a very big mistake by making the assumption that every parent can do it, that it is natural and you just know what to do.”[394]  To illustrate this point, Jane Ursel noted that pre-natal classes have universal appeal for young mothers because they are free, non-judgmental, and practical, whereas parenting classes tend to be delivered free only to individual parents judged to be at risk.  Our Committee emphasizes that parents need to be informed about the services that are available to them where they will not be labelled as inadequate.  Such services need to emphasize parenting skills, the avoidance of corporal punishment, and how to help children cope with the problems in their lives.[395]  Billie Schibler, Manitoba’s Child Advocate, reinforced the view that such services need to highlight the importance of nurturing, not just making sure that “babies are fed on time.”[396]  Joan Durrant emphasized that:

One of the important components of parent support is recognizing that we need to decrease social isolation among parents, especially new parents, and normalize the challenges of child rearing. Hearing that all babies cry and all babies need to be fed every three hours would do tremendous things to reduce the incidents of shaking of babies. Just hearing that from other parents can be very powerful.[397]

She also pointed out the benefit of labour policies that allow parents to take time off work for such necessary parenting programs.

Finally, numerous witnesses emphasized the need to provide better training for all professionals dealing with children and children’s issues – judges; lawyers; teachers; front-line decision-makers such as refugee board members, customs officials, guards; family law mediators; police; social workers.  Professionals such as these should be provided with a solid background with respect to the Convention on the Rights of the Child, its application through Canadian law, how most effectively to apply the principle of the best interests of the child, and how to deal specifically with children.  Both policy-makers and the drafters of legislation should be trained with respect to the principles and terminology contained in the Convention.[398]

 

B.   A CANADIAN CHILDREN’S COMMISSIONER

1.      The Organization

Over two years of hearings, witnesses appearing before the Committee consistently criticized the fact that Canada is one of the few countries in the developed world that does not have a permanently funded mechanism designed to monitor the protection of children’s rights.  During its study, the Committee itself met with the Children’s Ombudsmen in Norway and Sweden, and the Children’s Commissioners in New Zealand, Scotland, and England.

The Committee quickly realized that one of its primary proposals should be the establishment of a Children’s Commissioner at the federal level in Canada to “promote responsible and good governance, and provide a seamless service delivery to children.”[399]  Almost every witness who appeared before the Committee, whether independent experts, advocates for children’s rights, or those linked to the UN, supported the establishment of such a monitoring and facilitating body.  In particular, the Committee on the Rights of the Child criticized Canada’s lack of a federal monitoring body in its latest Concluding Observations:

The Committee notes that eight Canadian provinces have an Ombudsman for Children… the Committee regrets that such an institution at the federal level has not been established.

The Committee recommends that the State party establish at the federal level an ombudsman’s office responsible for children’s rights and ensure appropriate funding for its effective functioning.[400]

In its General Comment on the implementation of monitoring bodies, the UN Committee emphasized that the establishment of such a body is part of a State Party’s obligations under article 4 of the Convention, stating that:

[T]he Committee on the Rights of the Child considers the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights.[401]

The Paris Principles Relating to the Status of National Human Rights Institutions,[402] adopted by the UN General Assembly in 1993, list the essential elements of such a national human rights institution: a broad mandate established through legislation; pluralistic representation of society among the appointed members; the power to promote and protect human rights; adequate funding to provide independence from government; and responsibilities, such as submitting reports on human rights matters, promoting harmonization of national legislation with international obligations, encouraging domestic implementation, contributing to country reports to UN treaty bodies, public information and awareness-raising, and research.

 

a)  The Name

The Committee suggests that the new body be named “Children’s Commissioner” in order to highlight the importance of the rights-based approach enshrined in the Convention.  Testimony from New Zealand, where the legislation was changed in 2003 to highlight this distinction, emphasized the importance of such an approach.  Cindy Kiro explained the implications of this shift:

The change of name is quite significant. Under the initial legislation, the name was the Commissioner for Children; it is now children’s, with an apostrophe – Children’s Commissioner. The change is intended to denote the ownership of the role by children. The change in name also signals an important shift in focus. The original intention of the role was very much around child welfare, in particular, around the functioning of our statutory child welfare agency… the focus is now more clearly on children’s rights. Thus, a shift from a welfare focus and, in particular, I would suggest, a reactive individual case-based focus to one that is rights based, which is more proactive and systemic and looks at how to intervene to stop things from happening.[403]

 

b)  Independence

Witnesses from across Canada and abroad outlined how such an office could be structured.  They emphasized that Canada’s Children’s Commissioner should be an Officer of Parliament – appointed by Parliament and accountable to it and, through Parliament, to children and all citizens.  The body should be an arm’s-length, independent institution, endowed with real legal powers in order for it to effectively monitor implementation and protection of children’s rights.[404]  As noted by the

Committee on the Rights of the Child, “[t]he mandate and powers of national institutions may be meaningless, or the exercise of their powers limited, if the national institution does not have the means to operate effectively to discharge its powers.”[405]

The situation of Norway’s Ombudsman for Children, Reidar Hjermann, highlighted the importance of this issue.  Although nominally independent, his office is in fact under the administrative control of the Ministry for Children and Family Affairs – the very body it is charged with monitoring.  In the past, this control has constrained the Ombudsman’s power: he has been notified by the Ministry that issues such as government provision of baby bonuses to parents who keep their children out of preschool are of a political nature, and thus not appropriate for comment or criticism from the monitoring body.[406]

Ultimately, the Children’s Commissioner needs to be more than “just an empty office.”[407]  Nicholas Bala of Queen’s University and Jeffery Wilson highlighted the absolute need for a strong monitoring body with tangible powers:

Mr. Wilson: …The child advocate would have to have some power.They must be able to take action. It would be a big issue if they could not take any action.

Mr. Bala: I completely agree with that. You would not want someone who is merely a public relations figure for the federal government to be the official children’s advocate. You would want someone with investigative powers to make recommendations or to directly provide remedies for children. The person should also have legal powers, a clear budget and autonomy.

Your question is a profound one. Does having an ethics commissioner mean that politicians can say we do not have to worry about ethics, because we have an ethics commissioner? Having an ethics commissioner, and similar officers, have highlighted the importance of the matter and given it some teeth.

There is a legitimate tension between the government and those offices.

As long as they have the visibility, independence and powers, they improve the situation for the different kinds of issues with which they deal. The Auditor General is another good example.[408]

The Committee believes that one of the primary purposes of the Children’s Commissioner should be to take responsibility for the Convention on the Rights of the Child and ensure that the government remains accountable to children and all citizens.  Our Committee emphasizes that this body cannot merely serve as a reason for parliamentarians and government to back away from their responsibilities in terms of children’s rights.  This point was echoed by the Canadian Council of Provincial Child and Youth Advocates:

A Children’s Commissioner would provide a means of accountability and ensure that the government’s commitment to the [Convention] is being carried out in real measures. It would also serve as a method to evaluate the effectiveness of existing and proposed policies and legislation.[409]

The Children’s Commissioner should be more than just another bureaucratic officer.  The Commissioner would be someone who could cut through the red tape and respond effectively to protect the best interests of the child.

 

 

c)  The Need for Legislation

Witnesses also emphasized the necessity of clearly worded legislation setting out the specifics of the powers and duties of the new office, as is the case with similar bodies, such as the Commissioner of Official Languages or the Privacy Commissioner.  Rita Karakas of Save the Children Canada stated that:

As with the Commissioner of Official Languages, there must be legislation which then enables enactment so the Commissioner has some capacity, just as the Auditor General has some capacity. There has to be the ability to act, to intervene.[410]

However, beyond setting out the generic responsibilities of this monitoring body, the Commissioner should have a statutory responsibility to have regard to the Convention on the Rights of the Child.  As one example, Sweden enacted the first legislation to explicitly link the Ombudsman’s mandate to domestic implementation of the Convention in 1993.[411]  In addition to referring to the Convention, the New Zealand legislation also includes the international instrument as an appendix, thus emphasizing its centrality to the Commissioner’s role.

Recognizing the importance of children’s voices in this process, Canada’s new law should include a statutory responsibility for the Office of the Children’s Commissioner to hear from and involve children in its operations.

 

2.      The Role of the Children’s Commissioner

a)  Monitoring Role

One of the roles of the Children’s Commissioner should be to monitor the federal government’s implementation of the Convention across Canada.  Our Committee recognizes that it is the government’s responsibility to implement the Convention, but that alternate mechanisms are needed to ensure the effectiveness of that implementation.

All witnesses in support of such a body emphasized that the Children’s Commissioner should conduct ongoing examinations of federal legislation, services, and funding for programs affecting children and their rights, making “recommendations, assessments and criticisms”[412] of government action or inaction in order to facilitate change.  Kathleen Marshall, the Scottish Commissioner for Children and Young People, emphasized that the Commissioner needs to work to hold the government to its promises, highlighting ways in which Canadian law, policy, and practice fail to respect the rights outlined in the Convention.[413]

The Committee suggests that the Children’s Commissioner also be mandated to assist the federal government with preparation of Canada’s periodic reports to the Committee on the Rights of the Child, in partial response to the numerous criticisms heard with respect to this reporting process.  Such assistance could include providing advice or recommendations, and could go so far as to involve the preparation of a parallel report by the Commissioner for submission to both the government and the Committee on the Rights of the Child.

Finally, within the purview of this monitoring role, the Commissioner should be mandated to report annually to Parliament with an assessment of the federal government’s implementation of the Convention.  The report would essentially be a statement as to the status of children’s rights in Canada for a particular year.

What parents or any citizen or any politician wants to know is: How are our kids doing? We want to know in terms of their health, their education, and in terms of all the other aspects of their lives: How are they doing? How are they doing compared to last year, compared to five years ago or compared to 20 years ago? How are they doing compared to kids in other countries? We also want to know how they are doing according to the standards we have in our heads. As Canadians, we have certain understandings and expectations of what it is to be Canadian. How are we doing relative to those understandings?[414]

As stated by the Committee on the Rights of the Child, tabling an annual report would “provide parliamentarians with an opportunity to discuss the work of the [Commissioner] in respect of children’s rights and the State’s compliance with the Convention.”[415]   It would also sensitize government and the public as to the rights enshrined in the Convention.  The UNICEF Innocenti Research Centre highlights the fact that annual reports “create visibility for children’s real lives and they further increase understanding and hopefully initiate debate on the breaches of their rights.”[416]

 

b)  Investigative Powers

Witnesses were adamant that the Children’s Commissioner also be endowed with significant independent investigative powers – not just into the government’s implementation of the Convention, but also into more systemic issues and broad policies concerning children’s rights in Canada.  Through these means, the Commissioner would be able to stimulate public debate on various issues and make effective recommendations for change.

Like Joanna Harrington of the University of Alberta, the Committee suggests that the role of Canada’s Commissioner should ultimately be to act as a general spokesperson for children and to conduct systemic investigations – similar to the role of the Children’s Ombudsmen in Sweden, Scotland, and England, who do not have a mandate to intervene in specific individual cases.  The Committee believes that the Commissioner could work to ensure that mechanisms are in place to deal with specific complaints with respect to children’s rights; specific issues would thus be referred to the provincial child advocates and ombudsmen, while immigration and Aboriginal issues would be referred to the appropriate federal court or tribunal.  As stated by Save the Children Norway in its Children’s Ombudsman report:

Whether able to handle individual complaints or not, it is important that the ombudsman keeps a constant eye on forces in society that serve as violations or obstacles to the rights of children, and bring this knowledge to the attention of the responsible parts of government as well as to the public. Individual complaints could be used to form the basis for more… general initiatives to amend legislation or to remove other factors that result in violations of children’s rights.[417]

 

c)  Awareness-Raising

Based on discussions with national children’s ombudsmen in other countries, our Committee has concluded that the Children’s Commissioner should be entrusted with an awareness-raising role to more fully respond to Canada’s obligations under article 42 of the Convention.  Reflecting suggestions made in section A of this chapter, the Commissioner should be empowered to conduct public education campaigns concerning the Convention and its rights, as well as with respect to specific issues pertaining to children.  For example, in New Zealand, the Office of the Children’s Commissioner runs intensive workshops about on child advocacy across the country and publishes a quarterly newsletter about children’s issues.

As an important part of this role, the Children’s Commissioner should work to make his or her Office visible and accessible to children, parents, and those providing services to them across Canada.  By advertising its presence and responsibilities, the Office of the Commissioner would enhance its own accessibility, which is a crucial part of ensuring effective protection of children’s rights.  This point was emphasized by all Commissioners who testified before the Committee.  They, and other witnesses, highlighted the fact that where individuals and children are unaware of the resources available to them, resources become underutilized and monitoring and rights protection are less certain.

The same point was noted in the Innocenti Digest with regard to monitoring bodies under the Convention:

Rights have little relevance if nobody knows about them or understands them. Human rights institutions for children play a crucial role in informing children, governments, and the public about children’s rights, how those rights can be enforced, and why those rights are important. A measure of their success is the extent to which the institutions themselves are visible and accessible to children.[418]

 

d)  Aboriginal Affairs

Based on its discussions with witnesses about the particular vulnerabilities of Aboriginal children and their clear marginalization in Canadian society, the Committee strongly believes that the Office of the Children’s Commissioner should have a high-level officer dedicated to investigating and monitoring protection of Aboriginal children’s rights.  First Nations children cannot turn to the pre-existing provincial advocates because of jurisdictional barriers.  As stated by Cindy Blackstock of the First Nations Child and Family Caring Society of Canada, “there needs to be someone at a federal level to look at the violations of Aboriginal children’s rights across different disciplines so that we know what they are.”[419]

This officer should hold an influential position within the Office of the Children’s Commissioner to ensure that this dedicated role is not lost among the myriad of other issues and investigations undertaken by the Commissioner.  Perhaps a Deputy Commissioner could be assigned this role.

New Zealand’s Children’s Commissioner provides a significant example of how Aboriginal children’s issues can be prioritized within the Office of the Children’s Commissioner.  Not only is the current commissioner “a Maori woman… who brings that sensibility to bear for the well-being of all children in New Zealand,”[420] but the Office of the Commissioner also ensures that particular significance is placed on the protection of Aboriginal children’s rights in the country.  Cindy Kiro commented that:

What happens to Maori children is a priority of my office, and it is a priority for two reasons. One is that the same kind of negative statistics and negative experiences that you have just described for Aboriginal or indigenous communities within Canada is very much a feature of what happens to Maori children here in New Zealand…

The second reason… is that there are very particular rights and obligations that both the state and society as a whole have in respect of those peoples and communities. To be frank, there is nowhere else in the world where these peoples exist.[421]

 

e)  Liaison Role

Provincial advocates emphasized that the Children’s Commissioner should act as a liaison with the Canadian Council of Provincial Child and Youth Advocates to further facilitate the protection of children’s rights and effective monitoring across Canada. Marv Bernstein, Children’s Advocate in Saskatchewan, told our Committee that because of the federal system

…[m]y colleagues who are children’s advocates in other provincial jurisdictions and I often feel as though we are trying to fill in the gap through our Canadian Council of Provincial Child and Youth Advocates trying to touch upon federal jurisdiction where there are impacts upon the rights of children. Under federal legislation we can certainly advance interests within our home provinces but there is a clear gap at the federal level. We would like to work in a collaborative fashion with a Canadian children’s commissioner…

There often is a lot of activity; however, what sometimes seems to be missing is coordination, the articulation of a vision, having a sense of direction, integration of services and a sense of a collaborative partnership.[422]

Fred Milowsky, Deputy Child and Youth Officer in British Columbia, also noted that “the lack of a federal counterpart creates a hole that needs filling.”[423]

The Children’s Commissioner could help to fill these gaps and facilitate dialogue between the provinces, creating a more effective protection network.[424]  Through these means, provincial children’s advocates working with different legislation and different mandates will be better able to share information and statistics that may facilitate dialogue and investigations into particular and more systemic issues concerning the protection of children’s rights.  As suggested by Marv Bernstein, the Children’s Commissioner could also push for the establishment of independent children’s advocates in all provinces.  The federal and provincial advocates could potentially work together to establish best practices and facilitate the creation of national uniform standards, using the federal Commissioner as a coordinating framework.  Pointing out how these bodies could use jurisdictional frictions to facilitate dialogue and beneficial change, Judy Finlay, Ontario’s Child Advocate, stated that:

[A federal] Commissioner can be helpful to try to articulate the questions and to mediate some solutions. I do not think the passionate questions and the friction are bad. We need to have the dialogue in our country, and we need to have children as part of the dialogue. If we were to include young people and children in the conversation, we would quickly determine what is meaningful, because the young people would help us to do that…

Even though we have different mandates and somewhat different authorities, we find that the issues are the same for children’s advocates across the country. As a council, we would welcome and work closely with a Commissioner. Almost all provinces now have a provincially appointed advocate. The liaison between the provinces, through the Advocates, to the Commissioner would be one possible remedy to some of the disagreements or frictions between the provinces and the federal authority.[425]

The Children’s Commissioner should also encourage collaboration and consultation between various levels of government and with non-governmental organizations and other service providers who are currently working in a somewhat disjointed fashion to protect children across the country.  The NGO Group for the Convention on the Rights of the Child expressed frustration with the fact that NGOs working on children’s rights in Canada are not consolidated, thus impeding the systematic monitoring of children’s rights.[426]  Dr. Julien noted that “[t]here are many community groups, but often, these groups do not talk to each other. That is quite a widespread phenomenon.”[427]  Organizations and individuals working on children’s issues often wonder “who to talk to.”[428]  The Children’s Commissioner could play a significant role in helping to bring such NGOs together.

 

f)  Involvement of Children

The Committee also strongly suggests that the Children’s Commissioner have a statutory obligation to listen to and involve children.  According to article 12 of the Convention, children have a right to express their views and have those views taken seriously in all matters affecting them.  The Commissioner should be mandated to fulfil this obligation as defender of children’s rights at the federal level.  As stated by the Committee on the Rights of the Child, the Children’s Commissioner should “have direct contact with children and [ensure] that children are appropriately involved and consulted.”[429]  Not only should the Commissioner be mandated to involve children, the

Committee emphasizes that such involvement should be meaningful and effective.  The Office of the Children’s Commissioner is the most obvious place for such participation to start.  As one example, the New Zealand Children’s Commissioner is assisted by a young people’s reference group, providing the Office with representation and perspectives from children across the country.

The Committee has concluded that the Children’s Commissioner should be endowed not simply with a right to hear from children, but with a statutory responsibility to do so meaningfully.  Marilyn McCormack at the Newfoundland and Labrador Office of the Child and Youth Advocate highlighted this need:

I think it should be in all children’s legislation. That is what we advocate. In our legislation, it says that we have a right to meet with children and youth and interview them. I think it should be in all the children’s legislation that children should be heard. I think that would be excellent.[430]

Our Committee believes that through these means, Canada’s Children’s Commissioner could serve as a powerful catalyst for legislative, policy and attitudinal change.

RECOMMENDATION 20

The Committee recommends that Parliament enact legislation to establish an independent Children’s Commissioner to monitor implementation of the Convention on the Rights of the Child, and protection of children’s rights in Canada.  The Children’s Commissioner should report annually to Parliament.

C.   FEDERAL INTERDEPARTMENTAL IMPLEMENTATION WORKING GROUP FOR CHILDREN

1.      The Organization

In addition to emphasizing the need for an independent Children’s Commissioner to monitor children’s rights in Canada, witnesses expressed particular concern about the fragmentation within the federal government with respect to children’s issues.  Nicolas Steinmetz of the Fondation pour la promotion de la pédiatrie sociale described the silos that currently exist within governments and departments at the federal and provincial levels:

We must remember that it truly does take a village to raise a child. The villages of yesterday have been replaced by a much more complex society that acts through legislation, regulations and government policies from various departments.

When we have to approach representatives of a department about funding for social paediatrics, we realize that we are talking with public servants who also work in silos. For example, if Dr. Julien wants to help children succeed in school, he must also work in cooperation with people from the department of education. However, the people in the department of education believe that child development falls under the department of health and that they have no role to play in this matter. It is difficult to make these people understand that, when it comes to things like human development, society as a whole is involved and that the way our government is organized does not reflect public needs but rather illustrates the need of government to change the way it does things, and it is not always the same thing.[431]

Following up on the recommendations of numerous witnesses, the Committee recommends that the federal government establish an interdepartmental implementation working group entrusted with ensuring the protection of children’s rights across the federal government in order to improve compliance with and implementation of the Convention on the Rights of the Child within government itself.

When Canada first ratified the Convention in 1991, responsibility for coordinating implementation of the Convention and reporting to the Committee on the Rights of the Child rested with the Department of Justice and Health Canada’s Children’s Bureau.  Today, the Department of Justice and the Division of Childhood and Adolescence within the Public Health Agency are the primary agents responsible for compiling the federal government’s portion of the country report to the UN.

However, witnesses emphasized that housing reporting responsibility within these two departments is not enough.  Multiple agencies across the federal government deal with issues relating to children’s rights – what is needed is a coordinating agency to institutionalize the links and responsibilities of these various departments.  As noted by the UNICEF Innocenti Research Centre,

it is not usually possible to bring all matters covered by the [Convention] under one government agency, because the actions of more or less all government agencies impact upon children’s lives. Past experience has given visibility to the dangers of the marginalization which might result from giving responsibility for children’s policy to a single unit.[432]

The proposed implementation working group would coordinate activities, policies and laws for children’s rights issues across government – the departments of Justice; Citizenship and Immigration; Human Resources and Skills Development; Social Development; Public Safety and Emergency Preparedness; Canadian Heritage; Indian Affairs and Northern Development; Foreign Affairs; and the Canadian International Development Agency – in order to ensure accountability for all government actions affecting children.  Our Committee would be interested in seeing such an implementation working group housed within the Privy Council Office, as the body most linked to interdepartmental cooperation efforts.  However, if this should prove impractical, the Committee suggests that this working group be chaired by the Department of Justice, as the department with the closest links to legislation touching all aspects of children’s rights across Canada.

During our fact-finding missions in Europe, our Committee noted that numerous countries have established similar coordinating bodies to more effectively implement their Convention obligations.  For example, Sweden’s Ministry of Health and Social Affairs has a Coordination Secretariat whose role is to work at a general level to coordinate processes so as to ensure that the child’s perspective is reflected in all levels of government policy, as well as to prepare Sweden’s country report to the UN Committee.[433]  The United Kingdom also has a cross-departmental Cabinet Subcommittee on Domestic Affairs (Children’s Policy) that consists of representatives from all departments and meets regularly to ensure cross-departmental implementation of the Convention in England.[434]  Judy Finlay emphasized the need for federal leadership in this regard:

[W]e need an office internal to the federal government to implement operationally the National Plan of Action and the Convention. We are provincial authorities. We monitor and ensure adherence to provincial and federal legislation that touches our children only provincially, but without coordinated and centralized leadership there is no meaningful national commitment to the principles and the objectives of the convention.[435]

2.      Specific Roles of the Implementation Working Group

Our Committee recommends that the implementation working group have multiple roles – coordination and implementation; monitoring; promotion of Canada’s National Plan of Action, A Canada Fit for Children; and ensuring enhanced visibility for both children and children’s rights.

 

a)  Child Impact Analyses – Assessing Legislation from a Children’s

Rights Perspective

The implementation working group should be entrusted with primary responsibility for ensuring that all federal legislation conforms with Canada’s obligations under the Convention on the Rights of the Child.  The working group should undertake an extensive review of all existing and proposed legislation using the Convention as a checklist.  As stated by the Committee on the Rights of the Child, this review should

…consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights. The review needs to be continuous rather than one-off, reviewing proposed as well as existing legislation.[436]

Katherine Covell emphasized that in order to achieve this aim, the implementation working group should develop a child-based analysis for its approach to legislation and policy.  This would mean viewing legislation through a children’s rights lens – conducting a “child impact assessment” to determine the potential effects that any proposed legislation could have on children.  The Committee on the Rights of the Child describes this process:

Ensuring that the best interests of the child are a primary consideration in all actions concerning children (art. 3 (1)), and that all the provisions of the Convention are respected in legislation and policy development and delivery at all levels of government demands a continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation).[437]

Joan Durrant of the University of Manitoba told our Committee that Canada can look to government practices in Sweden for a model of how this can be done.  As noted by Kathy Vandergrift, “there are processes in this government to assess impact on other things.”[438]  Once such impact assessments were developed they would simply “become part of the decision-making package.”[439]

The Committee believes that using such assessments and adopting a checklist approach could work to ensure that children’s rights and Canada’s international obligations under the Convention are actually enforceable in Canadian law.  Although not necessarily apparent at first glance, almost every area of government policy and law affects children to some degree: consider the example of health, environmental, and economic legislation.  As stated by the UNICEF Innocenti Research Centre in its Digest on monitoring bodies for children’s rights, “there is no such thing as a child-neutral economic policy.”[440]

 

b)  Ongoing Consultations

Based on criticisms of the current consultation process in Canada, our Committee believes that another role of the implementation working group should be hold out ongoing consultations with the provinces, territories, and stakeholders – including children – with the aim of ensuring that Canada’s laws continue to comply with our Convention obligations.  The working group could play a crucial role in organizing the consultations and discussions recommended throughout this report.  The working group would take on the role of coordinator, organizing consultations among relevant government bodies to ensure that the provinces are aware of their obligations and the legislative and policy solutions available.  The Committee notes that in a federal system, networks often work better than other models.  What is needed is a system to enhance collaboration. The challenge is to institutionalize this process.[441]

Establishing the implementation working group is a necessary response to the criticisms of the Committee on the Rights of the Child concerning the ability of the Continuing Committee of Officials on Human Rights, or any other body, to effectively coordinate respect for children’s rights in Canada:

[T]he Committee remains concerned that neither the Continuing Committee of Officials on Human Rights nor the Secretary of State for Children and Youth is specifically entrusted with coordination and monitoring of the implementation of the Convention.

The Committee encourages the State party to strengthen effective coordination and monitoring, in particular between the federal, provincial and territorial authorities, in the implementation of policies for the promotion and protection of the child… with a view to decreasing and eliminating any possibility of disparity or discrimination in the implementation of the Convention.[442]

 

c)  Reporting to the United Nations

Having already emphasized the need for a streamlined, more efficient and transparent process in the production of Canada’s reports to the Committee on the Rights of the Child and all UN treaty bodies, our Committee notes that Canada’s next report under the Convention on the Rights of the Child is due on 11 January 2009.  The government should immediately initiate consultations for this momentous task, given that Canada’s last report took approximately three years to develop.  The current deadline is less than two years away.

Responding to the UN Committee’s and witnesses’ concerns, the Committee suggests that, when established, the implementation working group prepare the federal portion of Canada’s country report to the Committee on the Rights of the Child, and work closely with the Continuing Committee to assist as needed during consultations with the provinces and territories.  The working group would be uniquely situated to respond to this demand, given its ongoing consultations with other jurisdictions and stakeholders.

Fred Milowsky, Deputy Child and Youth Officer of British Columbia, noted that the NGO report tends to be issued in reaction to the government’s report, creating an “adversarial rather than a collaborative relationship.”[443]  Mr. Milowsky emphasized the need for meaningful dialogue between government and the NGO community in the preparation of their respective reports to the UN Committee.

The Committee emphasizes that the implementation working group should also be mandated to include children in the preparation of the country report in order to arrive at a better understanding of the children whose rights are most directly affected by the policies and legislation under discussion.  This could take place through ongoing consultations and the establishment of direct mechanisms during preparation of the report to facilitate dialogue.

However, the need to streamline and simplify does not end with Canada’s own preparation of its country report.  The OHCHR has recognized that its own demands are onerous and is currently examining how best to streamline UN treaty bodies’ reporting process.  Every treaty body currently faces extreme backlogs in terms of their receipt and examination of country reports and is falling behind.  In 2004, Canada donated $5 million over three years in core funding to the OHCHR to assist it in standardizing and streamlining this process, and in October 2005 it donated another $3 million.  Although these discussions are ongoing, one of the immediate results has been the division of the Committee on the Rights of the Child into two chambers.  In 2006, the UN Committee considered reports in two parallel chambers of nine Members each to clear up the backlog of reports.

By making this donation, Canada has already begun to assist the reform process.  The Committee supports reinforcing the positive direction that the OHCHR has taken to ensure the establishment of a permanently simplified reporting procedure that both allows for in-depth exploration of individual countries’ implementation of the Convention, and also eases the burden on States Parties which currently have to spend years preparing their reports.

Finally, the Committee suggests that the implementation working group be charged with preparing the follow-up Government Response to the UN Committee’s Concluding Observations, to be tabled in Parliament.  This response should detail the federal government’s reaction and provide answers to each of the UN Committee’s suggestions and recommendations.

Ultimately, our Committee echoes the words of Kay Tisdall, who said that reporting to the UN Committee will be “an empty exercise”[444] unless Canada puts enough effort into the entire process.  As stated by the Committee on the Rights of the Child in its General Comment on implementation,

The reporting process provides a unique form of… accountability for how States treat children and their rights. But unless reports are disseminated and constructively debated at the national level, the process is unlikely to have substantial impact on children’s lives.[445]

 

3.      The Need for an Education Strategy

In addition to this focus on legislation and reporting requirements, the implementation working group should work towards awareness-raising, and create a “well-resourced, comprehensive national communication strategy”[446] to ensure dissemination of information about children’s rights to children, advocates, decision-makers, professionals, front-line workers, and the public at large.  In line with suggestions made in section A of this chapter, our Committee believes that this strategy should be broad in scope; it should include distribution of information on governmental and independent bodies involved in implementation of the Convention, and how to contact them.  The working group should ensure that such information is freely distributed in schools.

The Committee suggests that the working group also ensure wide distribution of the Convention itself, both in a child-friendly version and in many languages, to ensure that it is made accessible and meaningful to the children and families most marginalized in Canadian society.

Witnesses in Canada and abroad, as well as the Committee on the Rights of the Child, emphasized that raising awareness about children’s rights issues is an absolute obligation under article 42 of the Convention.  Not only does this obligation require information-sharing about the Convention itself, but it necessitates widespread dissemination of Canada’s country report, the UN Committee’s Concluding Observations, and the Government Response, to all interested stakeholders.  The Committee suggests that the newly established implementation working group consider the example of Sweden, which puts its country report in edited book format after submission to the UN, distributing copies to NGOs and local authorities as a basis for future discussion.[447]

 

4.      The Results

The benefits of establishing such an implementation working group have been made clear to the Committee. International case studies confirm that

…establishing children’s rights-focused permanent institutions and structures within governments, has been critical to the pursuit of coordinated implementation of the [Convention] – and to the [Convention] becoming a visible reference for the public at large. With a more coordinated approach, the involvement of civil society becomes more likely, as does the ability to incorporate the child’s perspective in policy-making. These mechanisms have helped place children on the national agenda, promoted articulation of child related activities, developed a strategy for the realization of children’s rights and assessed progress.[448]

As well, the Committee notes that mandating a role for children’s involvement in the implementation working group’s activities is crucial to the effective application of children’s rights and the rights-based approach in Canada.

RECOMMENDATION 21

The Committee recommends that an interdepartmental implementation working group for children’s rights be established in order to coordinate activities, policies, and laws for children’s rights issues.

 

D.   DATA COLLECTION

As a final point, our Committee wishes to emphasize the potential for data collection that both the Children’s Commissioner and the working group could generate.  Witnesses across Canada deplored the lack of national data on children’s issues.  While statistics may be collected provincially or even locally, there is no coordinating mechanism to bring such research together to create a national portrait of children in Canada.  Witnesses called for the government to improve data collection in a variety of areas affecting children’s rights.

The Committee recognizes that this matter is not simple.  Precise data are extremely difficult to find and may not be useful in and of themselves.  It is the interpretation and analysis that bring the numbers to life.

Yet even general national figures can help stakeholders to better understand an issue, to build a more comprehensive system of monitoring gaps in children’s rights and assessing the impact of initiatives, and to develop intervention strategies.  Witnesses emphasized the importance of good statistics and their ability to get organizations mobilized around an issue.  Both the Children’s Commissioner and the federal implementation working group can play an important role in collecting such statistics, or in creating dialogue with organizations doing data collection, in order to create a national database on issues affecting children.

E.   THE COMMITTEE’S COMMENTS

This Committee’s mandate was to examine and report upon Canada’s international obligations with respect to the rights and freedoms of children and whether Canada’s law, policy and practices can be said to comply with the requirements of the Convention on the Rights of the Child.  Based on the comments and criticisms of the Committee on the Rights of the Child, as well as two years of hearings in Canada and abroad, the Committee has come to realize that full compliance, and thus the comprehensive protection of children’s rights in Canada, cannot occur without effective implementation.  That effective implementation is lacking.

In response to concerns expressed throughout its hearings on children’s rights, the Committee attempted to address “the gulf between the rights rhetoric and the realities of children’s lives.”[449]  In order to do so, we framed our deliberations within the context of the rights-based approach set out in the Convention, working from the starting point that children are one of the most inherently vulnerable and unrepresented groups in Canada.  Our Committee attempted to find solutions that would ensure respect for children’s rights in a holistic way throughout Canadian society.

In addition to specific recommendations concerning the rights of particularly vulnerable groups of children, this approach led the Committee to recommend the creation of an interdepartmental implementation working group to coordinate implementation of the Convention throughout the federal government.  It also led us to recommend the establishment of a Children’s Commissioner, a monitoring mechanism intended to ensure effective implementation of children’s rights, as well as government accountability to the public as a whole and to children in particular.   Throughout its recommendations, the Committee highlighted the absolute necessity of facilitating children’s involvement in all mechanisms affecting their rights.  The voices, not simply the choices, of children need to be heard at a national level.

Our Committee insists upon the need to act now to preserve the lives and protect the rights of some of the most vulnerable members of our society.

Beyond the specific issue of children’s rights, this study also emphasized our Committee’s observations made in Promises to Keep about the inefficiency and inadequacy of Canada’s mechanisms for ratifying and implementing international human rights treaties more generally.  Only when Canada truly lives by its promises of compliance can this country be assured of living up to its international human rights obligations.  The Committee believes that Canada needs to bolster the effectiveness and accountability of its ratification process in order to truly claim the role of leader in the human rights field.  A reputation that extends beyond its own borders but does not apply at home is not one worth having.  The final chapter of this report will outline our Committee’s template for action with respect to implementing international human rights obligations in Canada.

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