Proceedings of the Standing Senate Committee on
Human Rights
Issue 2 - Evidence - February 3, 2014
OTTAWA, Monday, February 3, 2014
The Standing Senate Committee on Human Rights met this day at 5:05 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 (topic: Child Rights Impact Assessment).
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the fourth meeting of the Forty-first Parliament of the Senate Standing Committee on Human Rights. Our committee has been mandated by the Senate to examine issues related to human rights in Canada and abroad. My name is Mobina Jaffer, and as chair of the committee, it is my pleasure to welcome you to this meeting.
Before I continue, I would like my colleagues to introduce themselves, and I will start with Senator Andreychuk.
Senator Andreychuk: I'm Senator Andreychuk from Saskatchewan.
Senator Martin: Senator Yonah Martin from British Columbia.
Senator Unger: Senator Betty Unger from Alberta.
Senator Seidman: Senator Judith Seidman from Montreal.
Senator LeBreton: Senator Marjory LeBreton from Ontario.
Senator Eggleton: Senator Art Eggleton from Toronto.
Senator Hubley: Senator Elizabeth Hubley from PEI.
The Chair: Honourable senators, at our meeting on December 2, 2013, the committee agreed to receive a briefing on Child Rights Impact Assessments. Child Rights Impact Assessments have been described as systemic processes to assess the potential impacts of decisions on children and their rights and to promote policy coherence.
Such assessments can examine the impact on children of policies, projects, programs or laws, with the objective of selecting the options that minimize negative impacts on children and promote positive ones. Child Rights Impact Assessments encourage consideration of children's needs when they will be affected by a proposal, which proponents argue is particularly important because children cannot generally advocate for themselves through the political process. In addition, they are a tool to ensure that states respect their obligations under the UN Convention on the Rights of the Child.
To begin our hearings today, I welcome our first panel, from UNICEF Canada, Mr. Marvin Bernstein, Chief Policy Advisor; and Ms. Lisa Wolff, Director, Policy and Education.
I understand you have some opening remarks to present to us, and then the committee will have some questions.
Marvin Bernstein, Chief Policy Advisor, UNICEF Canada: Thank you. Lisa Wolff and I are very pleased to be here to have an opportunity to speak about Child Rights Impact Assessments, CRIAs. We feel it is quite timely given that 2014 represents the twenty-fifth anniversary of the adoption of the Convention on the Rights of the Child.
We have provided you with copies of our speaking points. I'm not sure we're going to be able to touch upon all aspects of the speaking points, but at least you will have it available as a resource and a reference guide into the future.
We do reference, in the speaking notes, the materials that are online at the UNICEF Canada website, and this is from the CRIA symposium, Bringing Children in From the Margins, that took place at the University of Ottawa in May of 2013. There is a discussion paper, a summary report and all of the PowerPoint presentations, which we would commend to you.
We've also attempted to provide you with the templates from New Brunswick, the English and French versions of the CRIA tool. We asked for translation of the screening tool and the full assessment tool from UNICEF Canada because it is important to move from the conceptual to the practical.
With these introductory remarks, I'm going to turn it over to my colleague, Lisa Wolff, who will be speaking to a number of different aspects that are important, certainly from a practical and technical perspective. Then I will come back and contribute towards the end of the presentation.
Lisa Wolff, Director, Policy and Education, UNICEF Canada: Thank you very much, and good evening, senators.
As Marvin referenced, we convened a symposium just under a year ago on Child Rights Impact Assessments. It was the first gathering worldwide to actually discuss this particular topic related to children's rights. The reason that we did so was that we were hearing from different colleagues in UNICEF, in different industrialized countries, about the emerging use of Child Rights Impact Assessments, and we really wanted to understand more about how it was working, how it was improving policy and other kinds of government decisions that affect children and what some of the challenges were. We thought the best way to do that was to convene those actually using it — different government representatives and advocates who tend to use it from the outside and try to influence government — and we convened, from about nine different countries, those types of experiences. We are really pleased that we had a number of policy- makers from provincial and federal governments attend to learn more about it.
We are happy to share some of what we've learned over the last couple of years. Most instructively, we have also in that time had the opportunity to work with the Government of New Brunswick very closely on their process to formally adopt Child Rights Impact Assessments. They are the first jurisdiction in Canada to now require policy developers to think about children explicitly when they're developing bills and other kinds of policy proposals that go to cabinet. They have their own rationale for doing that. We can reflect a little bit upon that. Every jurisdiction has different benefits and motivations for it.
You'll be aware that there are different types of impact assessments already used at the federal level and in different provinces, and they vary depending on the jurisdiction. Some use privacy impact assessments, some health impact assessments. It is not always clear why some considerations or interests are prioritized and given that kind of explicit consideration over others.
Child Rights Impact Assessment is simply a tool for thinking about the possible impacts on children of a proposal — a proposed bill or policy or any other kind of government decision that might significantly affect children.
One of the key markers of a Child Rights Impact Assessment is that it uses the framework of children's rights in the convention to help understand those impacts, to help think about how kids are going to be affected. The rationale is that the convention describes the conditions for good childhood. It sets out what most children need to thrive and to be protected. Those are also the conditions that governments have committed to supporting, so it makes sense as a framework for understanding how kids are going to be affected to look at their interdependent rights.
The focus is to understand how a proposal is going to support those rights or how it might fail to adequately provide for or support those rights. The aim is to maximize the benefits for kids of a proposal, particularly where they may not be directly affected but may be indirectly affected and where their interests haven't perhaps been fully considered.
When we are looking at the possible impacts on children and using the convention as a framework, we can think about whether it is targeted well. What groups of children might be benefiting? Will some be benefiting more than others? What are the distributional impacts? We can look at whether there are possibly negative impacts on children. Can those be avoided by altering the proposal? Can they be mitigated? If a proposal goes forward, and we know there are going to be some negative impacts on children, can we introduce measures to mitigate them or to protect children?
Where this process is used, we see that it is a structured way of thinking through these things. The policy developer usually proceeds through five or six different steps to think out how a bill or a policy might affect children, and depending on the jurisdiction, the process can be more complex or simpler.
In the ideal situation, it is the government that is undertaking this process. It is an aid to policy development. We see the greatest impact and benefit where it is the government, and it makes sense, because they have the policy-making authority and the duty to support children's human rights.
We know that parliamentarians share this duty. In some jurisdictions, you see independent advocates, children's commissioners and sometimes NGOs using this kind of assessment as an external downstream response to a government proposal. We see that in Scotland and in Australia, and they have varying success in influencing government proposals. Again, ideally, it is the government doing it before we have fully baked a piece of legislation or a decision that could affect children.
Another consideration, of course, is that given the different types of impact assessments already in use, we know that children aren't always an explicit consideration in those as well. In privacy impact assessments, there's not always, "Oh, okay, children's privacy rights might need to be protected differently than adults.'' Certainly, the debates around how we live in cyberspace today are calling those forward.
There are obviously a lot of different interests that governments need to consider and balance in decisions, and this committee would know that better than any other. Everyone is a human rights holder. You have different groups of people with rights claims to consider.
You might be asked, "Why focus on children?'' As a child-serving organization, we're always surprised at that question. It would probably be no news to you that children are particularly vulnerable, uniquely vulnerable and vulnerable in different ways than adults. They are a group whose interests are often overlooked, even though they form about a quarter of Canada's population. There are many significant reasons that children should be explicitly considered in the policy development process and even prioritized, as is their right under the convention.
We often see that children are the most vulnerable of the vulnerable. There are multiple and overlapping vulnerabilities around gender, disability and ethnicity. Given their developmental stage and their dependency, children can be disproportionately affected by deprivations that sometimes have lifelong effects. If similar conditions, such as a lack of nutrition or poverty, were experienced later in life, they would not necessarily have quite the impact that they would have if experienced in childhood. There are many reasons why children are a group deserving of explicit consideration.
We have seen that since Canada ratified the convention, this principle of having children's best interests constitute a priority consideration in all government decisions, which is their right, has been taken up in different domains. We certainly see it at least partially implemented in child welfare, in some cases in adoption law and policy, and in divorce and custody. But it is an incomplete project, and there are many decisions in which children's interests are not considered at all and not necessarily a priority. You would be hard-pressed to identify a significant government decision where children are not affected to some extent. It might be indirectly, but they are affected by many different types of government decisions.
We have seen a number of benefits to the use of Child Rights Impact Assessments not only to children but also to policy-makers. Sometimes it is just a matter of a proposal that simply overlooked or neglected to think about children in the formulation. Adjustments can be made fairly easily to protect children explicitly, to give them exemptions. We can see that the benefits of using a process like this would help us to consider future generations in policies, such as how citizenship is passed from parents to children.
Certainly, we can see a benefit in terms of considering different groups of children and distributional impacts. Our family benefit policy is designed so that different groups of children are considered and the differential impacts are considered. Do maternal leave benefits benefit adopted as well as biological children? These are all examples that this government has dealt with in recent years and could benefit from the Child Rights Impact Assessment. Having a structured process to think through some of these things early on before there are critiques later in the courts or the court of public opinion can be very beneficial. That's part of the motivation of the governments we have seen that have been using this process. Certainly it is beneficial to think up-front about these rather than deal with problems later.
To conclude my remarks, there is a remarkable range of different kinds of laws and policy proposals where we have seen Child Rights Impact Assessments used, for example in New Brunswick and internationally. They range from policies like reforming how mental health care is delivered in Australia to an organ donation law in Wales. A remarkable distribution of policies has benefited from an explicit way to put children's interests up front and think about them.
Mr. Bernstein: I'm going to deal with some of the factors that contribute to successful implementation of Child Rights Impact Assessments. Some of these factors that we have identified come from the literature; some have been evidenced through the CRIA symposium that was convened in Ottawa; and some of these success factors have been identified by our colleagues in New Brunswick, where CRIA has been mandatory, as Ms. Wolff said, for close to the past year. Before Ms. Wolff and I went to New Brunswick and convened some training sessions for government officials, we convened some key informant interviews with offices in Scotland, Wales and Western Australia to find out what were some of the indicators of success and how this could his be done effectively.
Some of the success factors conveyed to us included having a template — a tool that is practical and easy to use — and having some clear terms of reference. How is the CRIA going to be scoped out? What is the methodology? Who is going to be responsible for completing the assessment? Where does it go? What is this hoping to achieve?
Another element of success is embedding the requirement to conduct Child Rights Impact Assessments in legislation or policy directive. In New Brunswick, they have a policy directive such that whenever a proposed law, regulation or policy is going before cabinet, to executive council, there must be a CRIA. It is mandatory and attached to the memorandum to executive council. Where it is not embedded as a requirement it becomes discretionary, and the will to conduct CRIA may ebb and flow. I think it is very important to try to sustain the commitment to engaging in this process.
Another success factor is applying CRIA as one tool in a tool box. We know that there is interconnectedness between different rights in the convention. By the same token, there's interconnectedness in the general measures of implementation. It is great if CRIA can be implemented to attempt to ensure that policies and programming and legislation are giving rise to and supporting rights under the convention. To the extent that it can be coupled with good education, child-friendly budgeting and a movement towards establishing a national children's commissioner, it would strengthen the impact of conducting CRIA.
The other point conveyed to us through some of our key informant discussions is leadership and commitment: having a strong champion in terms of taking this forward, both within government and outside government. I will come back to this in the context of the experience in New Brunswick.
Certainly, applying CRIA early on before options are foreclosed, rather than saying we will conduct it once we have identified and reduced the range of options, really doesn't provide for the greatest creative discussions; so it is important to try to do this early on.
The other thing we heard in terms of encouraging government officials to take on this responsibility is that it is helpful to see CRIA as a mission that can really generate positive outcomes for children and that can make a difference in the quality of their lives and the policy-making, rather than to see it as just another task or add-on.
The other thing that certainly we were advised of in terms of the New Brunswick experience is greater collaboration and forging a stronger working relationship between government and the independent Office of Child and Youth Advocate, with everybody being on the same page and having a better understanding of a child rights framework.
What has the Canadian experience been to date? Certainly at the municipal level in the city of Edmonton, we have seen a child impact assessment approach to developing policy and programming as part of a commitment to child- friendly cities.
In other provinces, we've had some exploratory conversations in Ontario with some of the child welfare folks in the context of a program called Stepping Up. Ontario has developed a series of indicators that will evidence child well- being in an attempt to consider putting this into a CRIA framework and then linking it into the identification of rights fulfillment under the convention.
In Alberta, a social policy framework has been established, a children's first act has been passed but not yet proclaimed and a principle-based children's charter is evolving. There is an interest in looking at whether this can be incorporated within a CRIA framework.
In Saskatchewan, looking at the children and youth first principles, again, we've had conversations with some of the child welfare folks. Now that the province has adopted these principles, how do we make them real? How do we concretize these for children? Using a CRIA framework can be very helpful.
Moving on to New Brunswick, where we've seen probably the greatest leadership in this area, some of the key elements that have contributed to success there have been the adoption of a whole-of-government approach. As opposed to looking just at particular departments, they've looked at applying this within all of government. Another success factor was developing a CRIA working group that consisted of leads from eight government departments to kind of take this forward and mentor some of their colleagues.
New Brunswick also decided that it was going to design its own CRIA tool. The first stage of the tool just asked the question as to whether or not there are any impacts upon children. The second part of the tool, if the answer is yes, is to ask what rights under the convention are promoted by the proposal, what rights might be compromised by the particular proposal and looking at the impacts upon different groups of children. Oftentimes, in developing a policy or considering legislation, there is a sense that a certain direction is going to benefit all children, but that may not be the case when it comes to street children. It may not be the case when it comes to children involved in the child welfare situation. It may not be case in the situation involving Aboriginal children. Sometimes there need to be other accommodations for those children. CRIA doesn't necessarily look at individual children; it looks at groups of children. Then, by balancing the different rights under the convention, where does this take us in terms of promoting the best interests of children? They've taken a very pragmatic approach.
They've also created an electronic, self-directed form, with links to appropriate sources and resources that will be of benefit. It's not merely a pen and paper exercise.
Some of the benefits that we've heard back are that there's a better understanding of the convention and children's rights in New Brunswick. There's a greater balancing of the interests of various groups in the policy development process. There's a better level of analysis before writing a memorandum to executive council. What we've heard over the past year is that there have been instances where proposed policies have been amended after applying a CRIA framework, or some proposals have been pulled back as a result of applying a CRIA process. Certainly, when members of the legislature go forward in promoting a certain position, they have a level of confidence that this has been fully analyzed and scoped out by some of the policy analysts. As I said, there is a better understanding of the role of the New Brunswick Office of the Child and Youth Advocate by staff within the provincial government.
I just want to conclude by suggesting that the level of interest and engagement in Child Rights Impact Assessments shouldn't stop at the municipal level or at the provincial level; it really should enter the federal domain as well. All jurisdictions are concerned about introducing legislation and policy that are going to create good outcomes for children. In the case of the federal government and the two houses of Parliament, there are clear examples in the area of divorce and custody law, criminal law, immigration law, Aboriginal interests on-reserve, family and child tax benefits and public health.
The government of New Brunswick has taken a strong leadership role by initiating this mandatory process and instituting a new tool. We see some early, positive evidence that it seems to be working, and some of the impacts that children are experiencing are more positive. We would encourage the Senate to advance this direction and to explore the benefits of taking similar steps at the federal jurisdiction.
One of the comments that came out of the symposium is that we have an office directed towards privacy impact assessments. We don't have an office directed towards promoting Child Rights Impact Assessments, and certainly our children deserve no less than our community does in terms of considering the impacts of legislation and policy that may relate to their privacy considerations.
We've provided the tool to you for your information. We know that there have been perhaps difficulties at times in different parliamentary committees finding out what different departments within the federal government have done to determine whether or not proposed legislation is compatible with international human rights instruments. Putting aside the question of cabinet privilege or solicitor-client privilege, it would be important to ask what kind of template is being used by those government departments. In our submission, it should very closely resemble the kind of tools that we provided to you, and it should contain very similar questions. If it doesn't, then I think that you should be asking why not.
I'm going to stop there and ask whether or not there are any questions, or turn it over to Ms. Vandergrift.
The Chair: We'll go to questions, starting with Senator Eggleton.
Senator Eggleton: Well, as I understand the federal government's position —
The Chair: Sorry, senator, I made a mistake. May we go on to hear from Ms. Vandergrift. I apologize.
Kathy Vandergrift, as an individual: This is an important discussion you're having today, so I thank you for inviting me to be part of it. My input is based on many years of advocating for the rights of children in Canada and globally — through public education, various government consultations, submissions to this committee and research initiatives like the CRIA conference we hosted together with UNICEF.
Recently, I led the Canadian Coalition for the Rights of Children in a comprehensive review of children's rights in Canada, which resulted in this report, which this committee received previously, and Canada's third official review at the UN committee. I intend to relate the findings of the conference on CRIA that we jointly sponsored, which you have, to the current practice at the federal level, and perhaps that will help you to understand what difference using CRIA might make for children in Canada.
As was mentioned, this year is the twenty-fifth anniversary of the Convention on the Rights of the Child, championed by Canada under Prime Minister Mulroney when it was launched. Canada has since undergone three reviews, but there continue to be major gaps in implementation.
The most recent report from the third review was received about a year and a half ago. We suggested the government state what it would do with the recommendations more than a year later, on National Child Day, November 2013. There has been no response. The coalition suggested 10 steps to make it easier. There has been no progress on those, either.
The current system is clearly not working. Reviews of children's rights are essential, but they're only effective if they result in improvement for Canada's children. I fear a lot of work was done, but we've let our children down again.
Why CRIA? What difference could it make? I'm going to present six strategic reasons why I think it offers benefits that are missing in the current system.
As was mentioned, it's early and preventive. The reviews we do that evaluate results tend to bring out very defensive postures by governments. No one likes criticism of what they've done. Assessing the impacts early in the process, before governments have taken political positions, could be less confrontational.
Second, CRIA could raise the level of debate about children's rights and proposed laws. Allow me to use an example here. In the debate over Bill C-10, which changed the youth criminal justice system, the coalition and most children's organizations in Canada made the assessment that it violated the convention. The justice minister said it complied, but there was no objective way to even discuss the basis for that claim. Later, the UN Committee on the Rights of the Child also pointed out violations and asked Canada to revise it, but the bill was passed by then. Had there been a CRIA with a public report, senators would have been more informed and the debate could have been more specific and productive.
Third, CRIA can prevent unintended consequences. Identifying impacts early would allow changes to avoid negative consequences. Again, an example: The fitness tax credit was intended to help reduce obesity. Research now demonstrates low-income families cannot benefit, even though obesity is as much a concern in low-income families as in wealthy families. Had a CRIA been done, that credit could have been designed differently to avoid such discriminatory impact, which is contrary to children's rights and Canadian values, and it could be more effective in reaching its objective.
Cost savings: CRIA can help to find the most cost-effective options. In Canada, we now have volumes of research done on how improving the determinants of health in early childhood would reduce expensive health care costs, if existing resources were allocated more effectively. Some of that research has been done by the Public Health Agency of Canada, but research does not lead to policy change. Colleagues from other countries admire Canadian research on children and then come here and wonder why the reality for children in some places is no better than in countries without such knowledge. CRIA is a tool that can bring research into the policy formation process to inform all the actors, which is important. Impacts and choices would be clearer, understood by the public and political leaders alike, giving you as parliamentarians a more robust basis for making wise decisions. The end result would be cost savings.
Transparency and accountability: Public CRIA reports will increase transparency and help parliamentarians be accountable for protecting the rights of children, which is an important obligation.
Finally, it could enhance federalism. CRIA processes could help reduce children's falling through the cracks of federalism because they put children at the centre and take a comprehensive approach from both levels of government. With the loss of the social union agreement in 2014, Canada is losing one important tool that did track how resources from both governments help young children. CRIA could be another tool to help bridge the federal-provincial divide when it comes to the well-being of children.
I'm going to try to anticipate and address a few of your concerns. First, it is only one tool. It's useful, but it's only one instrument, and, as was mentioned already, it needs to be part of a broader toolkit. Awareness of children's rights remains a challenge, and it is a critical factor for success, but we know that CRIA also raises awareness.
Why focus on children? On a strategic level, let me repeat the main theme of our monitoring report; this theme was shared by all parties. With an aging population, Canada cannot afford to continue to let so many children fall short of achieving their full potential because of circumstances that could be different. It is in the best interests of every Canadian to ensure that every child can develop and use their full potential; that is what fulfillment of children's rights is all about.
We get the question, would this be just more bureaucracy? CRIA, I think, would help put the existing systems to better use by tying the pieces together within the framework of the convention. It's not about more government; it's about improving how we govern for children.
I would like to suggest three options to this committee. First, you could study CRIA further and consider recommending that the government use CRIA in its policy development process for all matters that affect children. There are already two provisions for compliance with human rights in the official process, but they are minimal and they are less than effective, as the examples I gave you have shown. This would be a substantive improvement. If it leads to an improvement for all rights, that would be a good thing.
One option is that the interdepartmental committee on children rights be strengthened and mandated to do this. In many cases, departments that originate policy proposals could lead, as long as they include others. If Justice does it, then clear terms of reference and public release are essential, given our experience in the past.
A second option would be for the committee to use CRIA for a piece of legislation that affects children and comes to you for review. It could be a pilot project to illustrate one way that legislators can take seriously their duty to protect the rights of children.
A third option would be to use the CRIA approach to analyze one of the issues that affect children that are on your agenda. That would build, for example, on the work this committee did on bullying; it could set another very good precedent of good practice that could then be replicated in different places in the government.
Thank you.
The Chair: Thank you very much. We will now go to questions.
Senator Eggleton: My understanding of the federal government position with respect to the Convention on the Rights of the Child is that when legislation is drafted — and I can be corrected by my colleagues over here — all of Canada's treaties, convention, whatever, are taken into consideration, which means they would take this one into consideration. What are your thoughts on that?
Ms. Vandergrift: The process by which that's done is very minimal. It's almost a check box. It's not a thorough assessment, and from our experience, it tends to look at whether there is a major violation of the convention. It does not look at how this helps to fulfill the various provisions of the convention and how far. It's not a CRIA process, and I would argue our report shows ample evidence that it has not been a thorough process in the past, as did the Bill C-10 experience.
We made an access-to-information request afterwards asking to see the document and were told no such document like we described exists. It's very minimal, but the two provisions are there, so you could argue for an enhanced process — that's what the Child Rights Impact Assessments would be.
Senator Eggleton: By the way, I would appreciate a copy of that report. I wasn't a member of the committee at the time you presented it.
Ms. Vandergrift: Sure.
Senator Eggleton: Does UNICEF have a comment on the question I just asked?
Ms. Wolff: Yes, I think maybe just to complement what Ms. Vandergrift said. How we see this being used in other jurisdictions, including New Brunswick but also in other countries — some are federal states and some are not — is that in the policy shops where this is beneficial as proposals are being developed, the justice department is kind of a pit stop on the way and it's an important lens of scrutiny and advice in the policy development process, but if you've got a piece of health legislation or an income benefits policy being proposed, it should be in that shop where there are considerations about how this is affecting children. Which children? It's again not just about the zero sum or the low benchmark of are we violating rights. It's more, are we giving all due consideration to doing the best we can for children? It's that nuance thinking.
Senator Eggleton: It doesn't necessarily have to be dealt with within the framework of a special entity. New Brunswick has set up a working committee, or there could be additional staff or a child commissioner or a child advocate, a separate entity. Are you saying that it could be combined with other things, like environmental or other assessments being done?
Ms. Wolff: Yes. In New Brunswick, the working group was set up as a temporary mechanism just to decide on how the process is going to look in the tool, but it's now in the policy shops. The interesting thing is that the more it's being used by the policy developers, the more facility they have to think about children. It becomes part of the process, the routine, and it gets a little easier. That's where it makes sense.
Senator Eggleton: You're holding up New Brunswick as a model here. I think you mentioned Edmonton amongst the municipalities, but is it arguable that other jurisdictions might be doing effective work in this area, just using a different template or model altogether? Can you comment on that?
Mr. Bernstein: Sometimes you hear about Child Impact Assessments that some work maybe is being done looking at possible policy work or legislation. Certainly, within child-serving ministries, such as, in Ontario, the Ministry of Children and Youth Services, part of the response is that they have looked at impacts upon children. That is different than a Child Rights Impact Assessment, which looks at every right in the convention and how it might be impacted, positively or negatively, directly or indirectly, by the proposal that is under consideration.
In New Brunswick, this is really a stand-alone document. Child Rights Impact Assessments are being done separately from gender impact assessments or privacy impact assessments, bringing a sharper focus to come to some determination of whether it is going to advance the best interests of children.
My understanding of what's done at the federal government level is really just, in terms of the policy directive, asking government officials whether or not the proposed legislation is consistent with human rights instruments, which is a much lower bar than going through a rights-based analysis, right by right, and determining how a proposal impacts different groups of children. It's a much more detailed and sophisticated level of analysis.
Ms. Vandergrift: I might just add that British Columbia adopted a holistic framework for all departments that is based upon the convention, and they're using more of a quality-assurance approach within the departments. Again, that tends to be after decisions are made, so we argue that a CRIA process, up front, could add some advantages.
Senator Seidman: Perhaps I might continue some of the questions that Senator Eggleton asked you. You did mention New Brunswick's tool, but what I'd like to know is more about the design and implementation of CRIAs. Are there models or protocols for their design and implementation — for example, international models? You mentioned other countries that are currently doing this.
Mr. Bernstein: They did look at international models from Scotland and Western Australia. When they had conversations with senior levels of government, the determination was that they should design their own tool. They wanted something that was simple. They wanted something that was pragmatic, so that's why the first part of the tool looks at a child impact assessment. Is the proposal going to impact upon children in some area? If the answer is in the affirmative, they go on to the second stage.
There was a sense within senior levels of government, as communicated to us, that they felt it would be very time- consuming, both at the initial stage and then again at the full assessment stage, to go through a rights-based analysis, to go through each right in the convention. The feeling was that most policies and most pieces of legislation are going to impact upon children directly or indirectly, so it's a very low threshold.
The other point was, rather than going to a lot of extrinsic tools and resources, they could create the self-directed electronic form. They could refer to the convention. They have all the articles listed, and they summarize them and group them together. They also have a reference to some of the general comments by the Committee on the Rights of the Child, some of the indicators of well-being within the province of New Brunswick. So they adapted a tool that was tailored to the needs of the province and reflected a consensus that people were prepared to commit to. That seemed to be a very productive process, and it is a whole-of-government approach.
Senator Seidman: Is there any data on the impact of CRIAs? In other words, is there hard evidence that they have the desired effect, that they actually result in the change of a law or a policy?
Mr. Bernstein: What we've heard is purely descriptive. At this point, there is an evaluation process. When they decided, as a partnership between the independent Office of the Child and Youth Advocate and the Executive Council Office in New Brunswick, they determined that they needed some technical expertise in training and in the development of a curriculum. That's where they brought us in from UNICEF Canada.
The other piece was evaluation, the research piece, and they have brought in the University of Moncton. That data hasn't been generated yet, but we have heard, through discussions with the key person within the Executive Council Office, who was the governmental champion for CRIA, that it has made a difference. It has changed the course of policy development. It has caused amendments and withdrawals.
One example was cited to us. There was some consideration as to where early child care services should land, some debate as to whether that should be in the Department of Social Development or the Department of Education. As a result of going through this process, they determined it should be within the Department of Education.
There are some other examples. They are not making the CRIA public, so this is still a confidential process. They are attempting to summarize some information, but they aren't disclosing the details of the actual CRIAs at this point.
Ms. Vandergrift: At the conference we had, we heard about one evaluation of 22 CRIAs in the U.K., and they did show that amendments were made to legislation as a result of the CRIA. In terms of tracking outcomes in the actual lives of children, it was a bit early to do that. Evaluation was done in the U.K., but it is a developing field. We'll see more evaluation of CRIAs as time goes on.
Senator Seidman: Yes because, of course, the issue is cost-effectiveness. A study was done in Ireland that demonstrated that significant resources were necessary in order to go through this process. As a result, it becomes enormously important that you can demonstrate cost-effectiveness.
That leads me to the question of whether you know the costs involved in going through this process. How long would it take? What additional costs would it involve?
Ms. Wolff: I'm familiar with the Ireland study. Again, on the scale of being pragmatic versus being idealistic about this, I think they were reviewing a process that would fall to the ideal side. We had the author of that come to our symposium as well and discuss that.
Again, in a lot of cases, the actual analysis is not public, so it is difficult for academics and researchers to evaluate. You are getting anecdotal government reports wondering if this is actually worthwhile. There are two ways to look at evaluation. Is it actually influencing our policy process? And how is it affecting kids? I don't believe anyone has got down to the ultimate impact level. We've seen it in Wales, where they have been using it for a couple of years, and we're willing to discuss that it is influencing the policy process. In New Brunswick, it has been in use for a year. You've heard some of the anecdotal evidence there and that the cost in New Brunswick was minimal. There was no additional budget to develop the tool or to socialize it into government. Their model of pragmatism is admirable — it is a world-class effort.
The stepwise process of thinking through impact on children looks fairly similar from jurisdiction to jurisdiction. New Brunswick took the best ideas and applied them to their context in a fairly efficient way and got under way fairly quickly. It's a remarkable lesson. If you're taking a pragmatic approach, some level of analysis is helpful, and it doesn't have to be the idealistic situation that was looked at in Ireland.
Senator Andreychuk: If it's in New Brunswick and not being made public, how do we know whether it is a valuable tool and the best tool for children? I don't understand. What would be so sensitive about that part? Dealing with children can be sensitive, but why would dealing with the modality be confidential?
Ms. Wolff: There is probably some willingness to look in the future at making the analysis public. Early on, as policy developers are getting familiar with the tool, they're sensitive to not wanting to be critiqued for analysis tools that they are just beginning to have some competency with.
Ideally, it should be transparent and accountable; and it could probably help to build stakeholder support for a proposal to see how the interests have been thought through. Even if you don't like the ultimate decision, you'd be able to see that consideration had been given; and that provides a better basis for debate and discussion. In New Brunswick, because we were working closely with the government and they're happy to talk with other provincial governments about it, it is anecdotal but they tell us that policies they have been applying CRIA to have been shifting and have been influenced by it.
Wales has some public reports about how they have been applying it, but is still not making the analysis transparent, although that would be desirable.
Ms. Vandergrift: In New Brunswick, it is part of the cabinet process. I think we know federally that if it's part of the cabinet process, it tends to be held in confidence. We have asked to see a couple of times. We asked the Department of Justice Canada to tell us what kind of an assessment it does, but it doesn't make it public either. We thought it would not be so sensitive, but they don't make it public either. It is part of that process.
In some jurisdictions where they're done by child advocate offices, they have tended to be more public. They have a public education element to them, as some government processes in other places have. The advocate offices often do public CRIAs.
Mr. Bernstein: If I may add one observation, some statements by the UN Committee on the Rights of the Child in relation to Child Rights Impact Assessments are General Comment No. 5 on general measures and General Comment No. 14 on best interests of the child. The committee is certainly encouraging that these assessments be transparent and made public, which could encourage some very healthy debates.
When parliamentarians are considering a proposed bill, there is also an appended Child Rights Impact Assessment. When witnesses come and give testimony before parliamentary committees, they can respond to the CRIA. An intermediate option might be a summary of the Child Rights Impact Assessment to at least identify some of the core thinking and elements that led to a specific conclusion.
This was an area of some difference of opinion between the Office of the Child and Youth Advocate, which was encouraging greater transparency, and the Executive Council Office, which was supporting this direction. They weren't foreclosing the opportunity and the possibility of making them more transparent in the future; but they said that for the short term, as they were working this through, they were not prepared to go that distance right now.
Senator Seidman: I suppose, Senator Andreychuk, the question was my comment to say that if you have a tool of this nature, you have an enormous opportunity to evaluate its impact in a real, tangible way.
It is a shame that you don't have the hard evidence, but they're not willing to provide the hard evidence right now. I see that as a huge opportunity.
Mr. Bernstein: Recognize that the evaluation study is still moving ahead with the University of Moncton, although they are not making the specific Child Rights Impact Assessments public at this time.
Senator Hubley: Thank you for your presentation this evening.
You have spoken fairly often about the different levels of government: municipal, provincial and federal. I'm wondering if you include councils under your governance — the bodies of governance for Aboriginal people.
Have you seen any evidence within the New Brunswick model or elsewhere across the country — in Edmonton, I believe, there was another model — where chiefs and councils have looked at CRIAs and decided that perhaps they might adopt them for their governance as well?
Mr. Bernstein: Not at this time. One of the points to keep in mind is that CRIA can be very helpful in examining differential impacts on different groups of children.
If you are looking at the impacts on Aboriginal children, you would be looking at articles in the convention, such as dealing with the right of non-discrimination, in Article 2, and a right to respect culture and heritage and indigenous traditions in Article 30. And General Comment No. 11 relates to the rights of indigenous children. Looking at all of these different considerations may lead you in a different direction or to a different accommodation in the case of Aboriginal children.
Having spent some time in Western Canada, I have found that those kinds of conversations are extremely important for engaging Aboriginal leadership in those communities. Those conversations need to take place, but until this point they haven't taken place at that level.
Senator Martin: Thank you very much for your presentation. I listened carefully, and as you say, this is one tool. That metaphor is indeed something that we can apply here. We look at tools that are used in certain contexts, and what is used in one place doesn't necessarily work in other places.
You talked about the New Brunswick government having used it, and on a provincial level, I can see a very clear application and a use for such a tool with the Ministry of Children and Family Development in B.C., for instance, where their policies and programs are very focused on families and children that would be directly impacted.
I'm curious about the effectiveness of this tool on the role of the federal government at the national level. I go back to an example you gave, Ms. Vandergrift, the fitness tax credit. You said that if this were applied, that would have been better or different. The objective of that fitness tax credit was to increase activity among youth. There is concern about obesity rates. In terms of meeting that objective, I think that that tax credit is an incentive and it has worked. I'm curious how the application of this tool would have made that different or more effective.
Ms. Vandergrift: Research has now shown this particular measure cannot be used by low-income families. Low- income families also need assistance if they're going to put children in sports in order to reduce obesity. Had that been considered earlier, maybe something could have been built into the program to ensure that it could be applied across a broader range of families.
Regarding your question about the federal government, for example, we know that changes in citizenship can affect children. Sometimes changes have been made in legislation after we came forward and raised issues about the rights of children. It would be helpful if that could be looked at in the beginning. Immigration and Aboriginal children are other areas under the federal government that have huge impacts for children independently of the provincial governments.
I also think CRIA could help a lot when it comes to the federal-provincial interface. One of the biggest issues we named in this report is children who fall through the child welfare system. We know that a high percentage end up in the criminal justice system, and the two systems come together. Again, if we were to look at things more comprehensively, with Child Rights Impact Assessments, we could perhaps prevent some of that.
Senator Martin: In a comparable jurisdiction in terms of size and complexity and diversity, like the United States, did you say this is being used by the U.S. federal government?
Ms. Vandergrift: No.
Senator Martin: Are there any examples?
Ms. Vandergrift: There are some urban areas in the U.S.
Senator Martin: I'm wondering if there's a comparable jurisdiction where this is being used effectively.
Ms. Vandergrift: The U.K.
Ms. Wolff: Sweden and Belgium were probably the earliest adopters. At the national level, it is applied across the range of policy domains. There, they use it for transportation planning and for financial decisions. Is a budget cut going to affect children disproportionately? Should they be the last and least to face cuts? It is used in finance. In the U.S., we're only aware that one of the most impoverished places in the U.S. is in the state of Tennessee, and it is being used in Memphis at the city level to assess policy. In a lot of other countries, you see it used in a blend of national government and sub-national government.
Senator Martin: As a tool, I think it can be effective at the municipal and provincial level, and you cited the New Brunswick example. I would like to reflect on that. That was a key point in terms of a tool, having its effectiveness in certain contexts but not necessarily in a broader context. In any event, thank you for your answers.
Senator LeBreton: Thank you very much for appearing today. Senator Eggleton was right. When matters come before cabinet, there are all sorts of conventions and charters. They all have to be certified as respecting the Charter.
Just on a practical level, we have 36 million people spread across this vast land. A significant proportion of our population are people who chose to come to Canada, from different races and cultural backgrounds and religions. We have a significant Aboriginal community. Most of our health and welfare systems and our education systems are delivered through provincial governments. You cite the New Brunswick example, and they follow a model that is followed federally through the executive council, or cabinet in the federal government.
Where do you start on a practical level, and what about privacy and the rights of the parents and these individuals or these cultural communities that may feel that they're being adversely impacted by perhaps some of the things that you are suggesting? Just from a practical point of view, I think there are some good tools and templates, as you mention, and you talked about some of the tools, but I don't see a lot of evidence that we have really addressed the practical issues in terms of the way our government is structured with federal government, Aboriginal, provincial and municipal governments and territorial governments.
When you look at this, you realize it is a very high, steep hill to climb. Are there any models you could suggest that would get everybody thinking along the same path, at least to start somewhere?
Ms. Wolff: Examples are always helpful. I don't want to focus on legislation where children's advocates downstream have said that this doesn't comply with children's rights or that this legislation has negative impacts for children.
For me, an interesting debate occurred in a House of Commons committee that was considering maternal leave benefits when a child is adopted into the family. Right now, adopted children are treated differently than biological children. They're not entitled to the same level of benefit even though arguments were made before the committee that these children have just as much need to socialize and bond with the family and often have special needs in terms of schooling and other supports due to the hardship they may have endured. The debate was really about the mother and not the child. It was, well, a biological mother having biological childbirth has more need of leave. It wasn't a child- focused debate about these two groups of children, biological and adopted, having different but weighty needs. There was the argument that they should not be treated differently, which some might call discrimination, but that we should take a child-focused lens and look at what the children need as opposed to what the mother needs in terms of maternal benefits. That was a wonderful opportunity. If you were using a Child Rights Impact Assessment, it would shift the whole conversation about how we look at the design of programs like that. It was a missed opportunity. That's a great example of thinking about children and putting their needs and interests first, and looking at specific articles, like the rights of adopted children and the non-discrimination principle. You don't give different groups of children different treatment if it's going to have negative impacts for certain groups as opposed to others.
Senator LeBreton: I guess it is like a "who's on first'' when you are looking at this. Do you focus on a broad range of kind of federal initiatives, or do you focus more on the provincial level of government where most of the services and programs directly impact families and children, or do you focus on municipalities where there are direct-line services where children and families are involved? That really is the crux. In my view, that's the problem. It's such a diverse country, with so many diverse opinions, cultures and religious, that I don't know how you could take a set of tools and templates and reasonably apply them without impinging on the privacy rights of the children, although everything we do should be for the benefit of our children, but also customs of community groups, parents; how do you square that circle?
Ms. Vandergrift: I don't think it needs to be one level or the other. I think it can be at all levels, and if there's a concern about starting too big, the process could start with individual pieces of legislation or individual policy initiatives, maybe one.
Just to give another example, in the past, when the use of tasers was debated in the parliamentary committee, we drew their attention the question: Are you looking at the differential impact for those under 18? There's a very different impact in its use on adolescents. That had not come forward. Then they did look at it, and in fact there are different impacts when tasers are being used on younger ages.
It is putting that lens there. If it becomes part of what happens in the policy formation process, then increasingly that lens gets used. Maybe a good way to start would be to pick a few, do them well and demonstrate their benefits.
I don't think it has to be one level of government or the other. Everybody who works with children will tell you it is often the interface of federal and provincial programs that either works for or creates problems for children.
Mr. Bernstein: I think if this work were going on, as Ms. Vandergrift says, at all governmental levels, we would all be further ahead, and children would be the greatest beneficiaries.
It would also provide a mechanism for strong coordination, sharing information on best practices, what tools seem to be effective, what areas seem to be more effectively addressed.
For example, in the area of cyberbullying, we have anti-bullying legislation. We have different provinces going off in different directions and focusing their legislation on different areas, some rooted in educational choices, some, such as in Nova Scotia, looking at sanctioning parents who know or should know that their children are engaging in cyberbullying behaviour.
As your own Senate committee report, Cyberbullying Hurts, indicates, sometimes, with a view to trying to protect children from cyberbullying and protecting them from harm and discrimination under Article 19 and Article 2, we may be introducing policies that negatively impact upon other children who may be bystanders or who may be engaging in bullying behaviour, and we may be suspending them, we may be expelling them from school, and their rights to access education may be impaired.
The CRIA process enables you to say how do various groups of children fit into this policy issue? What is the right balance? Let's try and calibrate the impacts that are going to produce the best outcomes for all of these children.
So much of what is happening in terms of this constitutional structure within this country is that we see this fragmentation among the federal government, the provincial government and the municipal government. We have to see stronger alignment. If various levels of government are engaging in Child Rights Impact Assessments and sharing that knowledge and building upon the foundation from each other, then I think that all children are going to be better served.
Senator LeBreton: When you are conducting your research and as you work your way through this, do you do a lot of public consultation, or do you rely more on people who have expertise in the field? Do you actually seek input from the public at large, publicly available meetings at various communities across the country, or do you rely mostly on the expertise within the academic community?
Ms. Wolff: Specifically on Child Rights Impact Assessment, we convened a symposium to bring together I think 150 participants from government, NGOs and researchers to debate it, because again we had a lot of questions just like you do and we wanted to offer access to a number of different interest groups to explore and debate Child Rights Impact Assessments.
In terms of whose duty it is to undertake it, we see it as any level of authority that has a duty to respect or fulfill or help provide for children's rights. They should be the ones developing and using it, and if they're the ones also responsible for the policy, then they need to make the decisions about what will work for them in the process of thinking through impacts on children.
It is important to come back to this being simply a set of questions about how children are going to be affected by this proposal, whatever the proposal is. It is a way to think through those basic fundamental questions in a structured way without its being accidental or the result of the goodwill of a parliamentarian who raises a question in a committee or in the house. It is a structured way to be mindful of children.
Senator Eggleton: When I left off my last question, Mr. Bernstein, you talked about Ontario and the ministry responsible for children's services doing impact assessments on children, but you drew the distinction between that and what is going on in New Brunswick on the basis of the rights issue, the rights approach. I understand that.
However, quite aside from the principle of the rights approach, what do you see is the practical difference between what Ontario does and what you would like to see happen through CRIA or what New Brunswick is planning on doing?
Mr. Bernstein: I think one of the points that is important for me to convey is that I haven't seen the template for Child Rights Impact Assessments in the province of Ontario, but when we have had discussions with senior government officials, there has been an acknowledgment, "Well, we're doing a form of child impact assessment, but we're not really doing Child Rights Impact Assessments.''
To give you another example, when I was the provincial children's advocate in Saskatchewan for five years, I would often sit down with government officials across the table and I would ask questions to try to elicit how the proposed policy or program or piece of legislation was going to advance the best interests of children. You would sometimes find yourself locked in a stalemate. Well, of course, we believe this is going to be good for children, it is going to produce better outcomes, and it's going to have some good impacts, but because we didn't have a common framework, we couldn't unpack what "best interests'' really means when you look at the various rights that may be impacted by a specific proposal. Sometimes that created an impasse.
If they were working from the same framework as I was, as an independent child and youth advocate, then it takes you in a different direction. It helps you understand — and it allows you to say, "You know what I'm hearing from young people who are coming into my office and telling me about this particular issue and the kind of policy? They really should have some influence because they're experiencing the impacts.''
It creates a completely different conversation in terms of unpacking what "best interests'' really means for the outcomes that are likely to be generated from this particular proposal. I see a very clear demarcation between child impact evaluations and Child Rights Impact Assessments.
Senator Eggleton: I didn't know you were the child advocate in Saskatchewan. That's great. How many government jurisdictions in this country have child advocates?
Mr. Bernstein: Right now every province but Prince Edward Island, and the Yukon has an independent child and youth advocate, and Nunavut has just established legislation. When I picked up the Globe in the Ottawa airport the other day, I saw an invitation for application to be considered for the Representative for Children and Youth in Nunavut.
So the only territory that won't have an independent child and youth advocate is the Northwest Territories, and the only province is Prince Edward Island.
Ms. Vandergrift: Their mandates vary quite a bit across the country, and that's important to keep in mind.
Senator Eggleton: Okay, but what do they say about CRIAs? Do we have any knowledge about their position on CRIAs?
Mr. Bernstein: In terms of conversations, there's also a network, the Canadian Council of Child and Youth Advocates, so the provincial and territorial child and youth advocates get together periodically and convene their own conferences. Certainly, we've had some very constructive discussions. In terms of moving forward, I've had discussions with many of the advocates who support the implementation of Child Rights Impact Assessments.
The Chair: Following what Senator Eggleton said, I have made a continuous effort, along with many members on this committee, to try to get a national children's commissioner. I know that in your 2011 report, Right in Principle, Right in Practice, you recommended the establishment of a national children's commissioner or advocate to address children's rights issues under federal jurisdiction.
If we did have a national children's commissioner, how would it facilitate the CRIA at the federal level, if at all?
Ms. Wolff: In terms of a governance framework for children — different mechanisms that allow us to think about children and the impacts of our decisions on them — an independent advocate plays a certain role, and probably one of the greatest benefits is, again, to elevate knowledge about how different decisions might affect children.
However, sometimes that's done downstream after a proposal has been put forward, during the period of debate. You see, in some jurisdictions, a move to try to get that level of advice — there is an office that does nothing but think about children. There's a great depth of understanding and a comprehensive view of children and a listening to children that that office undertakes that a lot of departments just don't have the latitude to do. It's an office focused on children that should be contributing knowledge about children to the different departments and policy shops developing policy. They're listening, especially at an early stage, and consulting with the independent advocate, as we're starting to see in some jurisdictions, like England, which seems to be moving towards encouraging a consultation between the government, when it's developing a significant policy that could affect children, and their children's commissioner so that there isn't this public debate downstream that is much more critical in tone. It's a complementary system.
Again, coming back to Child Rights Impact Assessments, this is something the government should own, with the duty for policy and the duty for children's rights. It should be done up front, in a much more constructive and preventive way than having a children's commissioner address problems down the road.
Mr. Bernstein: Australia has a similar constitutional structure to Canada. For many years, they've had state children's commissioners, but they haven't had a national children's commissioner. Recently they've appointed a national children's commissioner.
From the standpoint of looking at the interests, well-being and the rights of children across the country, when I was a provincial children's advocate, there were often situations where I felt that the rights of children and their interests were falling between the cracks because I did not have a federal counterpart in Ottawa, certainly in terms of looking at the interests and rights of Aboriginal children that crossed over provincial jurisdictions. There were children who had immigration issues who were concerned about being detained. There were children involved in the youth criminal justice system. How do you get at some of those issues beyond the borders of your particular province?
It would allow a national children's commissioner to act very collaboratively with those provincial and territorial child and youth advocates. I would often ask myself, if it's fairly commonplace and accepted now that children benefit from having an advocate at the provincial and territorial level, why wouldn't they benefit from having an advocate at the federal level, certainly for those issues that fall within federal jurisdiction? A national children's commissioner could galvanize and elevate their voices, give them a vehicle to speak out about how they're experiencing federal issues and, for those children who aren't able to speak for themselves, advocate for directions that would fulfill their rights more effectively.
The Chair: Thank you Mr. Bernstein, Ms. Vandergrift and Ms. Wolff for coming today. You have helped us to understand this issue better. You are always so accommodating of all of our requests, and you certainly help this committee's work. I want to thank you on behalf of the members.
Thank you very much. We will adjourn until next week.
(The committee adjourned.)