Proceedings of the Standing Senate Committee on
Human Rights
Issue 15 - Evidence - February 19, 2015
OTTAWA, Thursday, February 19, 2015
The Standing Senate Committee on Human Rights, to which was referred Bill S-201, An Act to prohibit and prevent genetic discrimination, met this day at 8:02 a.m. to give clause-by-clause consideration to the bill; and to examine and report on how the mandates and practices of the UNHCR and UNICEF have evolved to meet the needs of displaced children in modern conflict situations, with particular attention to the current crisis in Syria.
Senator Salma Ataullahjan (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning, everyone. This morning we're going to give clause-by-clause consideration to Bill S-201, An Act to prohibit and prevent genetic discrimination. Is it agreed that the committee proceed to clause-by- clause consideration of the bill?
Some Hon. Senators: Agreed.
Senator Andreychuk: Before we proceed, I wanted to make some statements and hopefully have some agreement with the committee.
First, I want to thank Senator Cowan. I think this is one of the most compelling issues in the social policy field that any government is going to have to deal with. I think there are a number of new, modern issues that governments are dealing with, but DNA is one of those evolving fields that we're all paying attention to. It will probably affect all of our lives in one way or another. We're not quite sure to what extent, how it will be utilized by governments, et cetera. To begin that dialogue I think is extremely important.
If I recall from the testimony and Senator Cowan's comments in the chamber, his concern is that it not be used in a discriminatory way, particularly by insurance companies. That's a very laudable goal that I happen to support.
The difficulty for me is that I have reviewed all of the evidence, and the issue that kept coming up was — it's an issue that needs to be addressed — whether this bill is constitutionally valid. It could be that it is based on the discrimination issue, so I don't question the employment part of this because I think that's within federal jurisdiction. But if it is the regulation of insurance companies, the only testimony we had before us directly was the assistant dean of the University of Ottawa law school, who indicated that in his opinion the pith and substance of the bill was, in fact, the regulation of contracts. In this case, it would be insurance, and that would be within the purview of the provincial authorities.
Others raised the question of constitutionality but didn't actually give any evidence or legal import. They simply said that the constitutional issue could be an issue. Therefore, I'm very uncomfortable on the constitutionality issue, but not on the subject matter and the intent. Senator Cowan's reasons for bringing this before us I think are very laudable.
We have a duty here, not only to the people who want us to help them seek and gain the protections they want vis-à- vis DNA and its use by authorities, but I think we also have a responsibility to ensure that it is a constitutionally sound bill. The only evidence before us directly was by Dean Thibault, who says it's a provincial jurisdiction to regulate and not a federal one.
We have taken much pride in the Senate that we look at bills — unlike, we have often said, in the house — to ensure that they are implementable. In this case, I would not want to see some person dragged into a court by an insurance company and have to go through all of the agony and cost to determine that, while the bill had merit on its intent, it violated the Constitution.
What I would say and would like some conversation on before moving a motion is that I wish to defer this and instruct the clerk that we at least reach out to the provinces and determine what their position on this is. We heard some witnesses inferentially say that the provinces are looking to the federal government for leadership. I don't dispute that. If that's what they have been told, if they believe that it is not an intrusion, I'd like to hear that. On something so fundamentally important for the future, I think it is incumbent upon us to seek the input of the provinces.
We've been studying this bill for some time. I think a further deferral to give an opportunity for the input of the provinces before we proceed to clause by clause would be the responsible thing to do. I don't anticipate that we should give them time to ponder forever; I would suggest something like 30 days. If they choose not to respond, we can read something into that. If they respond and support, I think we then have the national will to proceed. That would be very important and instructive to future courts because they do look at our judgments. Senator Joyal constantly reminds us that the courts look to the work of the Senate because we've acted responsibly.
I'm not sure I know all of my rules, but I think that if I move the motion now, we have to go to a vote or a consensus. I'd like to hear other opinions before we do that.
Senator Cowan: Thank you, Senator Andreychuk. I appreciate your support for the principles of dealing with this issue.
I first brought this bill before the Senate in April of 2013. The puck has been ragged, let's put it that way, and since that time, I had to bring it back again after prorogation. It sat in the Senate. The government has refused to allow it to come forward until it was first assigned to the Legal and Constitutional Affairs Committee and then it was sent here. It's been here, I think, since last June.
The provinces are well aware of this issue and of this piece of legislation. None of them have expressed any concern to me. None of them have expressed the wish to come and oppose this bill or indicate any concern about constitutional issues. I think the evidence that you alluded to, that of Ms. Heim-Myers, who has travelled the country dealing with this issue and has spoken to provincial authorities, has told us, and her evidence is uncontradicted, that the provinces are looking for federal leadership in this field. It may well be that some provinces would want to introduce complementary legislation at a provincial level, and that's certainly what happened in the United States. But I think the evidence we have before us is that the provinces are looking for a federal leadership role here. There has been lots of opportunity for the provinces to come forward and express their views, if they wish to do so.
I do not agree; this bill is not about insurance in pith and substance. The only reference to insurance is in clause 6. That was put there as a protection or as what I felt was a reasonable protection for concerns that have been expressed to me by the insurance industry when I met with them, as I was working in the preparation of this bill. That clause we could simply delete. That's the only reference to insurance in this bill. This is not in pith and substance about the insurance industry. In pith and substance, this is about preventing discrimination.
These are not hypothetical cases, Senator Andreychuk; these are real people we're dealing with. We've heard compelling testimony from real people who are personally affected by this issue, both in terms of insurance and employment. We've also heard from experts in the field who deal on a daily basis with these issues. They are crying for help.
This is not going to become law tomorrow. I think we should send it back to the chamber where we can debate it. Then it has to go to the House of Commons and they need to debate it as well. But to simply defer it, this is not something that's been rushed through. We've had other occasions when things have simply arrived and we've tried to rush it through without giving people adequate opportunity to even be aware of this issue.
I must say, I've also worked with the legal officers of the Senate in the preparation of this bill, and we're conscious of the constitutional issue. No bill is absolutely free of risk, as I'm sure you know better than I do. I think the risk of this being constitutionally invalid is minor and I certainly think it's one well worth taking. We should deal with it today as we'd planned. As I say, the puck has been ragged for months and even years. It's time for us to deal with this.
Senator Nancy Ruth: Yesterday I met with the Law Clerk of the Senate, Michel Patrice, to clarify the issues that Senator Andreychuk raised because there was some confusion for me. He was very clear that the pith and substance was not about the insurance industry but about penal powers to prohibit discriminatory policies, which is in section 91.27 of the Constitution. I said, well, the insurance companies, if they didn't like that little bit about insurance, what would they do? Would they sue the people that were discriminated against on policies? What would they do? He said they would not do that. They would go for a declaratory judgment from a superior court, probably in the province of where the head office of the insurance company was.
What was interesting to me was he reminded me of at least two other instances where the federal government makes rules for industries that are controlled by the provinces. He used the payday loan societies as one example where the federal law regulates criminal interest rates, what's usurious, but the industry itself is regulated within the province. He also used an example of advertisements to children, which is under the jurisdiction of the provinces, but the federal government uses its penal power, such as we want to in this bill, to forbid certain advertising to children.
So this is not an uncommon thing that Senator Cowan's bill has raised. It would seem that if the insurance industry wishes to challenge it, they would do it through a regulatory declaration in the provinces. I don't think it's a federal constitutional issue and I would like us to deal with the bill today.
Senator Frum: I would like to support Senator Andreychuk's proposal and I would like to support everything she said. I think she said it very well. I particularly am supportive because she's suggested a 30-day time frame. I wouldn't say that's an extreme or unnecessary delay to get clarity and certainty from the provinces.
Senator Cowan, you said that we know the provinces support this because we haven't heard them object to it. I'm not convinced they're aware of it. I think a 30-day period is a reasonable amount of time to ensure that they are aware of it and to let them voice any concerns or objections, if they have any. If they don't, then that is indeed instructive.
I don't think it's really accurate to suggest that the pith and substance of the bill is not about regulating the insurance industry. It clearly is, half of it. I have your speech or presentation to the committee and at least half of it talks about how this affects the insurance industry. You said a moment ago that we're not talking about hypothetical cases. We're talking about people who are personally affected by insurance and employment.
There is just no getting around it. This is a bill that will regulate insurance, and maybe that's okay, if the provinces are okay with that because it will give some kind of guidance and leadership. I think the suggestion to take an additional 30 days and to hear from the provinces, if they're comfortable with federal legislation in this realm, is not an unreasonable thing to do.
Senator Eggleton: I have a question for Senator Frum. I've never known in my 40 years in public office for governments to respond all that quickly. Thirty days, very interesting. What if they don't respond within the 30 days? I would anticipate that perhaps some might, but the majority will probably not. Then what are we doing in 30 days? Are we going to ask for another 30 days and another 30 days? Or will we assume that if they don't answer, they have no objection?
Senator Andreychuk: Could I answer that? Having been on Legal and Constitutional Affairs Committee, we often ask provinces and put on a time limit of 30 days, 45 days. If you're saying 30 isn't enough, we could make it 45. But we have said that it's an urgent matter and we wish to proceed. The clerk can follow up to ensure the letter has been at least received and acknowledged.
I think we're on record then to have given them a direct opportunity because this is a federal-provincial issue. We are in a federal system and with something as important and significant as DNA, we should at least be on record as having we reached out to them. If they don't come back, I think we can then take some action in the way we say things, because we gave them that offer. They can later say it wasn't enough time, or whatever, but at least they had notice. To me, that's the important thing.
Senator Nancy Ruth, with respect, you had a conversation with our legal counsel. We didn't have the benefit of speaking to him. I have been asking: Let's get some constitutional experts. Senator Cowan really did put some of the fundamental questions to Professor Thibault about things said by Peter Hogg — and I'm not going to quote you totally, Senator Cowan. You raised the issue and put it to him that the federal government had some rights. You then asked him if he agreed with Professor Hogg, whereupon he said:
The authority to enact legislation of this kind [to forbid various discriminatory practices on pain of penalty] is distributed between the federal Parliament and provincial legislatures according to which has jurisdiction over the employment, accommodation, restaurants and other businesses or activities, in which discrimination is forbidden. Most of the field is accordingly provincial under property and civil rights in the province.
And this is the point I would like your comment on. . . .
Senator Cowan: Read the next sentence.
Senator Andreychuk: Yes.
However, there is a little doubt that the federal Parliament could if it chose to exercise its criminal law power (s. 91(27)) to outlaw discriminatory practices. . . .
Do you agree with Professor Hogg?
Professor Thibault said:
Parliament can amend the Criminal Code to provide for certain acts, certain crimes, but to go from there to making the genetic test requirement a crime is a significant leap. I am not prepared to make that leap today.
Canada is a federal state, and I think the provinces' jurisdiction over property and civil rights has to be respected, and Peter Hogg refers to that. It is equally important that the federal government's jurisdiction over commerce, as I mentioned, and criminal law be respected. However, legislative authority over one matter cannot be used to encroach upon the jurisdiction of another level of government.
In his further testimony he indicated that he was not prepared to make that leap, that the federal government would use its power in a way that would not encroach on the provincial government. This is the very reason that I think there is a dispute about what the governments may or may not do provincially.
On the one hand, I hear the social policy. They want the lead of the federal government on DNA, and I want it too. But on the fact that we're going to legislate something, I want to be sure that we're not encroaching on provincial power; and I don't want to put people through courts, because the insurance companies will take it to court. That is where I think we will be found wanting, that we didn't do our full job. We're saying a delay — I appreciate, Senator Cowan, you've had two years. I haven't had two years.
Senator Cowan: The Senate has had two years. This has been before the Senate for two years.
Senator Andreychuk: That's why I think a short time frame is a responsible thing to do, with an understanding that we would proceed after that.
Senator Cowan: To follow up on Senator Eggleton's question, let's go out 30 days and say nobody responds. Are you then saying, "All right, they've been given an opportunity; therefore, we take silence as consent"? Would you then agree that we would then not be concerned anymore about this issue about provincial concern? Or if we get one province that says, "This is a good idea and we're looking for federal leadership," and we get somebody else saying no, what do we do then?
Senator Andreychuk: We use our conscience to determine how we're going to vote on this bill at that point.
Senator Cowan: And what's your view of that?
Senator Andreychuk: I don't know what they're going to say.
Senator Cowan: Supposing they say that.
Senator Andreychuk: I'm not sure. I'm not going to go into hypotheticals. I was taught not to as a lawyer. I would want for them to have some opportunity to answer and I would like to weigh that evidence. I don't think that's an unreasonable request — mindful, on the one hand, of the importance of DNA, but mindful also of the jurisdictional issue in a federal system.
Senator Cowan: There are other bills that we've had before us, that you're well aware of, where somebody's come forward and said, "Well, look, this is a matter of provincial concern, an intrusion into labour law, and we can't deal with this until we invite the provinces." Is that the rule we should apply in every case where somebody comes along and says there is a constitutional issue here?
Senator Andreychuk: No, and I've never said that. I think it's the discretion of committees and the Senate to determine that. All I have before me now is one constitutional professor who directly deals with it, and he says it encroaches on provincial jurisdiction. The rest is speculation through witnesses, a number of whom, and you know the testimony probably better than I do, who say there is a constitutional issue. But that wasn't their concern, because they're concerned about the social policy issue of it. We had only Professor Thibault, and then I think Peter Engelmann, who also raised that they might welcome federal legislation, but there could be a potential constitutional issue.
I'm speaking for myself. I'm speaking as a person who has been in the Senate for a long time, and we pride ourselves on addressing the constitutional issues. What we do with them after — I have abstained, yes, sometimes, because everyone sees the situation differently. That is a senatorial right. That's the thing we pride ourselves on: independence.
I'm appealing to you, Senator Cowan, for a deferral of 30 days, which would at least give me some comfort to say we've reached out to the provinces, and then I would really like to take your perspective seriously and weigh it against the constitutional issue.
At this point here, I don't think I'm carrying out my constitutional duty to ensure that we have not violated the Constitution. I have abstained from bills because we didn't do the constitutional work. I have sometimes taken a risk, when I have received sufficient evidence to take that risk, that there may be some constitutional input. Surely reaching out to the provinces, if it's so important to them, at least someone would respond. I know in the legal and constitutional area you don't get all of the provinces, but if we get at least one jurisdiction saying they're not interested, if they say, "You deal with it," I will then take that as instructive.
Senator Cowan: With respect, there has been lots of time to do that. Those who are opposed to this or who want to otherwise not deal with it have had lots of chance to do this. I point out that your government promised in the Speech from the Throne to deal with this, so the government must obviously think that there is some federal authority to deal with this. Otherwise surely they wouldn't have placed it in the Speech from the Throne.
Senator Andreychuk: I think there is federal, and in fact that's what I say. I think on the employment side of it there are areas of federal responsibility. However, the evidence the committee got was that there's an intrusion into provincial jurisdiction on the regulation of insurance. I'm not being persuasive; I can tell.
Senator Eggleton: By way of comment, I think it is quite instructive that the provinces have not said anything in the two years this bill has been around. We've had this in front of us now since last year.
Senator Andreychuk, if you wanted to get this 30-day opinion, you could have asked for it many different times in the course of the discussion on this matter. To wait until the last minute and then to raise this — I think what Senator Cowan says is quite valid and I think we should proceed. I think we should support it. I think Canadians want to end this discrimination. If you were really just concerned with the insurance, that's one clause, but there is the Canada Labour Code and other things in here as well dealing with employment, not just insurance. But there is discrimination. The abundance of witnesses that have come before this committee have indicated that this discrimination must end, as it has in many other countries. We should adopt this bill.
Senator Andreychuk: On a point of privilege, I received a notice that said we were going to go to clause by clause.
Senator Eaton: I have to disagree with my colleague Senator Andreychuk. I don't disagree in principle finding out what the provinces think. I'm new to this committee, and I'm stunned you did not have witnesses specifically dealing with the constitutional issues between the provinces and the federal government.
If we hear back from Quebec that they're against it and from B.C. that they're for it and from Saskatchewan that they're kind of iffy, then what do we do? I think we're just muddying the waters. I think we should have the vote and let the chips fall where they may. If we have amendments, we should make them. If we want more testimony, we should hear it. But to write to the provinces and then hope that they all agree — what do we do if we have three provinces who all disagree with one another? Then what do we do? What have we solved?
I'm sorry. I think if you want to compel more testimony, I will support you. But to write to the provinces and hope that they respond and hope that they respond in one voice I think is asking too much.
Senator Cowan, because I'm new to this bill, relatively speaking, and have heard very little testimony, can you tell me what other jurisdictions have adopted this legislation?
Senator Cowan: I don't have all the testimony before me, Senator Eaton, but we are the only G8 country, if you like, that doesn't have legislation like this. There are any number of other countries — the U.S. has legislation, not exactly like this. There's no other country that has legislation exactly like this, but the U.S. has legislated at the federal level and at the state level with respect to some aspects of this. Britain has it, and so does Austria, France and Germany.
Senator Eaton: So legally, if we adopted this bill, it would not stop British Columbia or Saskatchewan or Quebec from adding to it or deleting from it?
Senator Cowan: Exactly. There's one provision in there that refers to the provinces, and that's clause 6 dealing with insurance. As I say, we could delete that if it was troublesome to colleagues.
It might be that the provinces would want to complement this legislation in some way, but it's not necessary, in my view. I think we're trying to set a standard which will apply to Canadians from coast to coast to coast, and in the mobile society that we have, I think that's what we need. I don't think we would want a patchwork of provincial —
Senator Eaton: Would it apply, for instance, to future immigrants? Could we compel them to have a DNA test to see if they were going to be a charge on our health system, or would it protect future immigrants?
Senator Cowan: It protects anybody.
Senator Eaton: Anybody?
Senator Cowan: Exactly. If the legislation were passed, you can't compel people to take genetic testing, nor can you compel anybody to disclose the results of the testing. That's the purpose of it.
Senator Eaton: Thank you.
Senator Frum: If the committee was determined to proceed, then I would say I am comfortable with the sections regarding the Canada Labour Code because that's clearly in federal jurisdiction, but not clauses 1 to 7 and not the clause affecting the Human Rights Act, which talks about prohibiting grounds of discrimination due to genetic characteristics, because we also heard testimony from the insurance companies that that applies to them.
I guess what I'm saying is that insurance is provincial jurisdiction. Those clauses deal with insurance. Perhaps the provinces will say that because of the nature of this issue they're comfortable with this intrusion on their jurisdiction, but I don't think anyone can sit here and say this is not an intrusion on their jurisdiction. That's just a fact.
So if you want to ignore that fact just because, well, I'm not comfortable with that. I would only be comfortable with that if we received notices from the provinces saying in this instance to go ahead and trample on their jurisdiction, which they don't tend to do. But if they feel that way, that's fine; then I'd be persuaded.
So I can't personally vote for those clauses today. I could vote for clause 8.
Senator Eaton: Would you like time to draw up the amendments?
Senator Frum: Well, okay. They mostly would have to do with striking those other clauses, but sure. If that would be an acceptable proposal, then I would be happy to do that.
Senator Cowan: That's what clause by clause is about. You either vote for a clause or you vote against a clause.
Senator Andreychuk: Well, that's the problem. I don't like doing things on the run. I still believe that as a federal constitutional body, we should afford the provinces at least some ability to come before us. If they choose not to, I would feel more comfortable to proceed and make my own assessments. I still think that would be the easiest way.
The other alternative would be to start calling constitutional lawyers, and that would be a delay of this bill. That's why I thought the middle ground would be to reach out to the provinces, and if it is so important, and I think the provinces are responsible, they'll either reply that they don't want to — we've had this before where a province will say, "You do what you think is right; we don't want to comment on it." Some have said, "You are into our jurisdiction," and some may not answer at all. We then weigh what we get, but at least we've reached out to them as a responsible arm of Parliament.
I would move to defer clause-by-clause consideration for a period of 30 days and instruct the clerk to contact the provinces to receive their input on Bill S-201 and the jurisdictional boundaries issue.
The Deputy Chair: So we have a motion before us that we not proceed to clause by clause but wait for 30 days for the provinces to respond. Agreed or not?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Eggleton: You better take a recorded vote.
The Deputy Chair: We will take a recorded vote.
Shall the motion carry?
Mark Palmer, Acting Clerk of the Committee: The Honourable Senator Ataullahjan?
Senator Ataullahjan: Yes.
Mr. Palmer: The Honourable Senator Andreychuk?
Senator Andreychuk: Yes.
Mr. Palmer: The Honourable Senator Cowan?
Senator Cowan: No.
Mr. Palmer: The Honourable Senator Eaton?
Senator Eaton: No.
Mr. Palmer: The Honourable Senator Eggleton?
Senator Eggleton: No.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: Yes.
Mr. Palmer: The Honourable Senator Hubley?
Senator Hubley: No.
Mr. Palmer: The Honourable Senator Nancy Ruth?
Senator Nancy Ruth: No.
Mr. Palmer: The Honourable Senator Ngo?
Senator Ngo: Yes.
Mr. Palmer: Yeas, four; nays, five; abstentions, zero.
The Deputy Chair: The motion is defeated.
Senator Nancy Ruth: The motion is carried?
Senator Eggleton: No, there was a deferral.
Senator Frum: Before we proceed to clause by clause, I'm wondering if it would be possible to take a few moments for those of us who may wish to propose amendments to regroup.
The Deputy Chair: We will suspend for five minutes.
(The committee suspended.)
——————
(The committee resumed.)
The Deputy Chair: Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-201?
Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 3 carry?
Some Hon. Senators: Agreed.
Senator Frum: Chair, I propose that we strike clause 3 on the grounds that it deals with the insurance industry, and that's not an area of federal jurisdiction.
The Deputy Chair: You want to strike out clause 3?
Senator Frum: Just delete it.
The Deputy Chair: We have to vote against it.
Shall it carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Deputy Chair: Should we have a vote on it? Shall clause 3 carry?
Mr. Palmer: The Honourable Senator Ataullahjan?
Senator Ataullahjan: No.
Mr. Palmer: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Palmer: The Honourable Senator Cowan?
Senator Cowan: Yes.
Mr. Palmer: The Honourable Senator Eaton?
Senator Eaton: No.
Mr. Palmer: The Honourable Senator Eggleton?
Senator Eggleton: Yes.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: No.
Mr. Palmer: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Palmer: The Honourable Senator Nancy Ruth?
Senator Nancy Ruth: Yes.
Mr. Palmer: The Honourable Senator Ngo?
Senator Ngo: No.
Mr. Palmer: Yeas four; nays five; abstentions zero.
The Deputy Chair: The clause is defeated.
Shall clause 4 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Deputy Chair: Should we have a vote?
Senator Eggleton: Is it the same recorded vote? If it is, then just record it the same.
The Deputy Chair: Is there agreement that it's the same recorded vote?
Some Hon. Senators: Agreed.
Senator Cowan: It is going to be recorded?
Senator Eggleton: It will be recorded as it was with the previous one, so we don't have to go through calling the vote again. It's the same people voting the same way.
Senator Frum: I propose that we deal with clauses 4 through 7 at once.
The Deputy Chair: Is that agreed? Shall we deal with clauses 4 to 7 at once?
Senator Cowan: As long as the identity of each of those senators is shown as voting for or against. Yes?
The Deputy Chair: Yes.
Senator Eggleton: It's the same vote for 4 through 7?
The Deputy Chair: Senator Cowan, are you asking for a called vote?
Senator Cowan: As it's recorded that that's the way we're doing it, then yes.
The Deputy Chair: We're just not calling names again.
Senator Cowan: Exactly.
Senator Eggleton: You just keep marking the sheets in the same way. You don't have to call it each time.
The Deputy Chair: So clause 4 through 7 will be the same as clause 3.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 9 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Deputy Chair: Do we want a recorded vote?
Senator Cowan: Yes, we do.
The Deputy Chair: Shall clause 9 carry?
Mr. Palmer: The Honourable Senator Ataullahjan?
Senator Ataullahjan: No.
Mr. Palmer: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Palmer: The Honourable Senator Cowan?
Senator Cowan: Yes.
Mr. Palmer: The Honourable Senator Eaton?
Senator Eaton: No.
Mr. Palmer: The Honourable Senator Eggleton?
Senator Eggleton: Yes.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: No.
Mr. Palmer: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Palmer: The Honourable Senator Nancy Ruth?
Senator Nancy Ruth: Yes.
Mr. Palmer: The Honourable Senator Ngo?
Senator Ngo: No.
Mr. Palmer: Yeas four; nays five; abstentions zero.
The Deputy Chair: Clause 9 is defeated.
Shall clause 10 carry?
Senator Frum: Chair, can I propose we do clauses 10 and 11 at the same time?
The Deputy Chair: Shall we do clauses 10 and 11? Does anyone have any objections?
Senator Eggleton: Is it the same recorded vote as clause 9?
An Hon. Senator: Yes.
Senator Eggleton: Okay, so record it as such.
The Deputy Chair: Agreed.
Shall clause 1, which carries the short title, carry?
Senator Cowan, are you going to propose an amendment?
Senator Cowan: No, not necessary.
The Deputy Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the bill as amended carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Deputy Chair: Is it agreed that I report this bill as amended to the Senate?
Senator Eggleton: Can I ask a question before you do that? What effectively are we left with here? I realize we've allowed for this amendment to the Canada Labour Code, but having removed so many other clauses, I'm not sure of the impact. I understand the one about removing the insurance aspect, but a lot of the other clauses deal with the prohibitions, the offences and the punishments, definitions and things like that. What are we actually left with that's an enforceable bill? Does anybody know the answer to that?
Senator Frum: I think the case for keeping the bill as it is now amended is that perhaps we can attach observations. I think those of us on this side would like to make the observation that, once again, we are not against the impetus behind the bill. We understand the social issue that it's trying to address. What we were facing here is a problem of jurisdiction, but that doesn't mean we're not sympathetic and supportive.
Senator Eggleton: I heard that. I'm asking what is, in effect, now in the bill? What's left?
Senator Nancy Ruth: Observations — discretion as to behaviour.
Senator Frum: I would then defer that to your side, if you think it's worthwhile or not to proceed. I'm saying if we do proceed, I would like to attach observations. If we proceed, then that will give us the opportunity to have the observation, which I would welcome.
The Deputy Chair: Senator Frum, if you're suggesting that we have observations, then those observations have to be drafted and translated. We have to have them in both official languages.
Senator Frum: I'm not on the steering committee. As the critic, I would be happy to work on that, if that was acceptable to you.
Senator Eaton: We could come back after the break and give Senator Frum two weeks to get observations done in both languages.
Senator Cowan: My suggestion would be that observations are just a justification for behaviour, as Senator Nancy Ruth says. I suggest when we report the bill back to the Senate — Those of us who participated in this can speak in the Senate and can explain why we did what we did and why we didn't do what we didn't do. I think that's the place to put our views on the record.
I would be opposed to attaching observations to this truncated bill. I think it should be reported back as amended. We can have an opportunity to speak in the Senate, on the record, when the bill is reported back. I think that's the appropriate way to proceed.
Senator Frum: That's fine.
The Deputy Chair: We need a motion to renumber the clauses, then.
Senator Eggleton: What choice do we have?
Senator Nancy Ruth: I would like to see the bill with all these bits cut out of it, just to see how it reads. The clerk can have that done, or somebody has to do it.
Senator Eggleton: That's what I was wondering.
The Deputy Chair: Is it agreed that we report this bill as amended?
Hon. Senators: Agreed.
The Deputy Chair: Honourable senators, we will continue with our agenda.
This morning we're examining and reporting on how the mandates and practices of UNHCR and UNICEF have evolved to meet the needs of displaced children in modern conflict situations, with particular attention to the current crisis in Syria.
We have with us, by video conference, Joel Oestreich, Associate Professor, Political Science, and Director, International Area Studies Program.
Then we have Mike McBride, Professor of Political Science, Whittier College, California, by video conference as well. I have to remind senators that it's six o'clock in the morning there.
I thank you, Mike, for being such a trooper. You've apparently been waiting for us since 5:15.
Mr. Oestreich?
Joel E. Oestreich, Associate Professor, Political Science and Director, International Area Studies Program, Drexel University, as an individual: As you said, my name is Joel Oestreich, and I teach at Drexel University. My research has been on UNICEF for quite a few years now, so I will speak to UNICEF. I will not speak to the other agencies, at least not directly. That's where I feel my expertise is.
I've been studying UNICEF and to a lesser extent the World Bank and the World Health Organization and some other agencies of that type. I'm particularly interested in how they think about human rights issues, which I think is of some interest to your panel and why I'm here today, and why and how these organizations think about human rights in the context of their work.
I do want to say that I'm not a Syria expert. I haven't been to Syria, and so I can't speak to that situation directly.
I want to make a few points. Most of the work that I've done over the last few years has been on the idea of a rights- based approach to development, how UNICEF and some other agencies think about the integration of human rights into the work that they do. As to UNICEF's core concerns for children, in one of their guiding documents on how they react to humanitarian emergencies, the practice note says specifically that rights should guide programming. One of the things that I've been looking at is what it means to have rights guide programming. I think it's very good. I think it's a very positive step that UNICEF has been taking the lead, for over a decade now, in thinking about what human rights means in the context of the work that they do, whether it's their traditional development work or responding to humanitarian emergencies. But I would note that this can often be very vague and sometimes very rhetorical. To speak of rights in the context of an emergency situation opens up a wide range of ideas about how that kind of idea can be applied to responding to the needs of children.
That can be good because it means that there's a lot of room for creativity in terms of programming. One of the strengths of UNICEF is that it is very decentralized and people can be creative. But it can also be bad because a lot of things that are done can be justified ex post facto by simply referring to rights language. There's a lot of wiggle room in there.
The second point I want to make is that even the idea of human rights is not entirely uncontroversial within UNICEF. There are still a lot of people who feel that the Convention on the Rights of the Child and rights language distract from the core mission of UNICEF, which is still seen as the basic interventions of the child-survival revolution, the basic core practices of UNICEF to save children's lives and to make their lives better. The child-survival revolution has been very effective for UNICEF over the decades since Jim Grant first introduced this idea back in the 1980s. In my research, I've noticed that a lot of people in very technical fields like health and sanitation feel that since there is a child protection unit in UNICEF that these are the human rights people, and it sort of let's other people off the hook to do the basic sanitation, health and education interventions that they know are effective.
A couple of other points: I have looked at UNICEF in other areas. I spent some time in India looking at what I guess one would call areas of civil unrest. One of the things that UNICEF is very well aware of and has been for some time is the importance of remaining neutral in civil conflicts and conflict situations. If UNICEF is not seen as a neutral actor by all of the parties, it fears that it will reduce its effectiveness and possibly even be unable to operate. This even goes back before the era of Jim Grant, who started intervening with Operation Lifeline Sudan and in conflicts in Latin America and really making UNICEF a player in humanitarian crises.
A lot of my research has been talking to UNICEF staff about the kinds of political situations they find themselves in, where they're trying to deliver aid and operate within areas of conflict. At the same time, they are aware of the fact that anything that makes it appear that they're on one side or another really jeopardizes their ability to operate. This is also not entirely uncontroversial. Sometimes I think people feel that one side is right or wrong, but it is an important political issue for UNICEF and one I think they are still adapting to, even now still learning how to navigate this kind of political ground for an organization that really still sees its core mission as providing basic health, nutrition and sanitation interventions and not being a political organization.
One other point: My research has shown that a lot of the strength of UNICEF in these situations, when it has to adapt to new missions, has been its decentralized structure. UNICEF is much more decentralized in terms of its decision making than many other UN agencies. I could name a few others, but I won't do that. I think that, if you look at the Inter-Agency Standing Committee Transformative Agenda on responding to humanitarian crises, the notion of empowerment of local staff in order to respond to humanitarian crises and do so in a way that adapts to the situation on the ground is something that really plays into the strength of UNICEF in that respect and something that I think is a very important part of their mission.
I'll point out that the leadership of UNICEF is really a vital resource for the organization, since the years of Jim Grant in particular. I keep referring to him as someone who is a transformative figure for UNICEF. It's an organization that has thrived when there are leaders who are able to move it forward, whether it's the Convention on the Rights of the Child, whether it's being involved in conflict situations or expanding its mandate. This idea of empowering and decentralizing the organization to respond to the crises that I've observed I think is an important source of strength for the organization and something that it really needs to be aware of and to foster.
Those are the points that I wanted to cover. I was told just to speak for a few minutes, so I hope that's helpful.
The Deputy Chair: Thank you.
We'll ask Professor McBride to give us his comments, and then we'll proceed to questions from senators.
Mike McBride, Professor of Political Science, Whittier College, California, as an individual: Thank you, Madam Chair and honourable committee members. I would like to thank the Senate committee for inviting me to speak today. As you know, I speak in my private capacity. I have been a consultant with UNHCR for about 20 years, but working in New York and Geneva with policy issues, not in the field. Unfortunately, I have not been to any refugee places that we would be talking about today.
I've been asked to focus my remarks on UNHCR's mandate with particular reference to children.
Several sources have contributed to UNHCR's mandate, in particular the statute of 1950; the 1951 Convention relating to the Status of Refugees and its 1967 protocol; and General Assembly resolutions, in particular the annual omnibus resolution on the work of the office.
Finally, conclusions adopted by UNHCR's executive committee have provided additional guidelines, especially regarding children at risk. The primary source of the mandate can be found in the statute.
In addition to defining a refugee, although later refined slightly by the convention, paragraph 8 of the statute notes that the high commissioner should provide protection for those refugees falling under the competence of his office by promoting the conclusion and ratification of international conventions, promoting through special agreements with governments the execution of any measures calculated to improve the situation of refugees, reducing the number requiring protection and assisting governmental and private efforts to promote voluntary repatriation or assimilation with new national communities.
Paragraph 9 states that the high commissioner shall engage in such additional activities, including repatriation and resettlement, as the General Assembly may determine within the limits of the resources placed at his disposal. This paragraph provides the justification for requests to the office from the General Assembly to assist others, including internally displaced persons and, later, stateless persons.
The 1951 Convention relating to the Status of Refugees places temporal and geographic limits on who could be considered a refugee. The 1967 protocol removed those limitations.
General Assembly resolutions have expanded the scope of UNHCR activities and people of concern to the office, but these resolutions have not really changed the mandate itself as expressed in the statute and convention. Early resolutions spoke primarily to funding concerns and encouraged states to cooperate with the high commissioner. Since the UN budget was only allowed to cover the administrative expenses of UNHCR's very small staff, in 1952 the high commissioner was authorized to seek voluntary funding. Canada was one of the first countries to contribute in that respect.
Also beginning in 1952, paragraphs were included that supported the high commissioner's search for durable solutions, with voluntary repatriation noted as the preferred solution, but with references to local integration and resettlement as alternatives. Paragraphs on durable solutions have appeared every year since then.
Over time, but especially in the 1980s, other topics were brought into the resolution and have remained through subsequent years. These include the right to return in safety and dignity, respect for the principle of non-refoulement, respect for human rights and international law, access to victims, addressing root causes, capacity-building, cooperation and partnerships, the safety and security of refugees, international solidarity and burden-sharing, sustainable returns, increased funding, and finally, assistance to internally displaced persons and the stateless.
The first references to women and children in the omnibus resolution appeared in the thirty-fifth and thirty-sixth sessions of the General Assembly in 1980 and 1981, when a preambular paragraph commented on the need for a substantial international humanitarian effort to promote durable solutions to the problems of refugees and displaced persons, drawing particular attention to women and children the world over.
Paragraphs on women or children did appear every year from 1985 through to 2000. The paragraph in 1985 noted with satisfaction the efforts of the high commissioner to address the special problems of refugees and displaced women and children resulting from their vulnerable position, which in many cases exposes them to a variety of difficult situations affecting their physical and legal protections, as well as their psychological and material well-being.
The 1992 resolution noted the importance of working on these issues in coordination with states and other intergovernmental and non-governmental organizations. In 1993, the resolution urged states to safeguard the rights of children.
Beginning in 1998, references to the disabled and elderly were added, and from 2001 through 2007, women, children, the disabled and the elderly were included in one paragraph under the category "vulnerable groups." With the adoption of UNHCR's age, gender and diversity mainstreaming policy, these groups were included in a broader statement.
The most recent resolution of the office from 2014 states:
The General Assembly. . . .
25. Affirms [inter alia] the importance of age, gender and diversity mainstreaming in analysing protection needs and ensuring the participation of refugees and other persons of concern to the Office of the High Commissioner, as appropriate, in the planning and implementation of programmes of the Office and State policies, also affirms the importance of according priority to addressing discrimination, gender inequality and the problem of sexual and gender-based violence, recognizing the importance of addressing the protection needs of women, children and persons with disabilities in particular, and underlines the importance of continuing to work on those issues;
Thus, for the last 30 years, General Assembly resolutions recognized the importance of addressing the special needs of women and children and encouraged UNHCR to work to that effect.
In terms of the overall mandate, what has changed in the 60 plus years of UNHCR's existence is not so much the nature of the mandate itself but the scope of UNHCR's activities to fulfill the mandate, along with significant growth in numbers and categories of people now of concern to the office.
However, one area where UNHCR's mandate was specifically extended, though not necessarily with regard to refugees, was the request by the General Assembly in 1974 for UNHCR to undertake work on behalf of stateless persons in light of the 1954 and 1961 Conventions on Statelessness.
References to stateless persons in the omnibus resolution did not appear regularly until 1994 but have been present almost every year since then. Recently, of course, the high commissioner has launched his initiative to end statelessness in the next decade, an initiative welcomed by the General Assembly in 2014.
Finally, as you know, UNHCR has been encouraged to assist internally displaced persons in many situations, primarily through requests from the General Assembly and affected states. While no organization has an official mandate to assist IDPs, UNHCR finds itself in the unusual situation of assisting more IDPs than it does refugees. It does so in part through the cluster approach and the transformative agenda, which had been referenced in Mr. Oestreich's comments, UNHCR omnibus resolution and the Economic and Social Council's annual resolution on the strengthening and coordination of emergency humanitarian assistance of the United Nations.
Even considering these possible exceptions, which have added to the types of people of concern to the office, I believe that in general, UNHCR has been able to broaden the scope of its activities and the range of people it assists, while staying within the parameters established by the statute, the 1951 convention and the 1967 protocol and General Assembly resolutions.
In terms of specifically addressing children's issues, the mandate is supplemented by several conclusions on children at risk, adopted by the Executive Committee of UNHCR most recently in 2007. The 2007 conclusion — over 60 paragraphs agreed to by members of the executive committee — lays out principles relating to the identification of such children, the principles that should govern how they are treated and proposals for how to promote prevention, response and solutions. These conclusions are consistent with the mandate as outlined in UNHCR's founding statute.
I think I should stop here, but let me just reiterate my main point, which is that I believe the mandate as presented in the statute, the conventions on refugees and statelessness supplemented by General Assembly resolutions, is flexible enough to cover UNHCR's activities with regard to refugees and stateless persons. The areas that may require an extension of the mandate would concern assistance to internally displaced persons, but even there the cluster approach and transformative agenda are providing guidance, and it would be difficult to get consensus among member states on this issue.
Finally, another area that may need attention in the future could be those forcibly displaced by the effects of climate change, who would not fall under the current definition of a refugee or UNHCR's mandate.
The Deputy Chair: Thank you to both of you for your presentations. Now we will proceed to senators' questions.
Senator Eaton: Professor Oestreich, you made an interesting remark when talking about the political side of UNICEF. It must be a very fine line, because if you're too neutral and don't take sides, you're letting bad people continue to do bad things. I'm sorry that was so simplistic. Are they being innovative in walking that line, or is it making them more and more ineffective because they don't take a political line?
Mr. Oestreich: I don't know that I have been to enough places where there have been conflicts. I've certainly studied the work they have done in some conflict areas and, as I've said, I had an opportunity to look at some of the work they're doing in India.
That's certainly of concern within UNICEF itself and that's something people there are worried about. My impression as an outsider is they have been sticking very closely to this idea that they're entirely neutral. I think all UN agencies to some extent worry very much about appearing to be taking sides in these conflicts, in any sort of conflict, and that it's going to weaken their ability to function. I sometimes point out that initially UNICEF was not even in favour of the Convention on the Rights of the Child. They had to be convinced that this was something they should be supporting because even that seemed like it would be too political, if they would have to start wagging their fingers at states and saying, "These are your rights and obligations." This is something that UN agencies are always concerned with, and they are supposed to represent the international community as a whole.
Does it make them less effective? I think most people within UNICEF, and I wouldn't want to speak for them, but my sense is most people within the organization would say that ultimately it makes them more effective because it gives them the ability to operate in places where they might not be able to operate if they were perceived as taking sides or not being entirely neutral.
Have I not met people within the organization who don't like that and agree that yes, sometimes there are clearly people who are on the right side and people who are on wrong side? I think what they would say is it's not that they are supporting anyone, but it's that they are working for children. Children aren't on the right or wrong side; children are the mandate of UNICEF. All children deserve to have equal access to the resources and the work that UNICEF is doing.
So that's a concern. I don't know that there is an answer to your question. I do know it's something that people are concerned with and that this idea of neutrality requires them to make difficult decisions once in a while in terms of not taking sides, even when it would appear that there are clear moral issues involved.
Senator Eaton: A question to you both: With the hundreds of thousands of refugees now in the Middle East and parts of Africa, are those two agencies being as innovative as they should be or could be? Obviously the solution is to keep people where they originate from and to rebuild rather than just to transplant them to another part of the world. Are they being as innovative as they could be?
Mr. McBride: I think the answer is probably we're never as innovative as we could or should be, but given the massive numbers that these agencies have to deal with, especially when there are sudden influxes, it makes it hard to innovate extensively because you're constantly trying to catch up with the latest crisis.
At the same time, I know that UNHCR is thinking a lot about innovation. We see constant initiatives, either coming from UNHCR itself, going way back into the 1990s from my experience with the Convention Plus program and the 4Rs: repatriation, reconciliation and so forth. Then there are some of the programs even now involved with Syria, the SHARP program and the Regional Refugee and Resilience Plan. I think they're trying to be innovative, but it's very difficult because they just don't have time.
One thing UNHCR has done recently in terms of staff innovation is create a website where staff can contribute ideas about how they might be able to work better in the field or probably even in headquarters. I think they have developed awards for those people who come up with some of the better ideas.
I think I'll stop with that. I have some comments, maybe if we have time later, on the dilemma that UNHCR faces that was just commented on. UNHCR faces the same problem of the neutrality and so on.
Mr. Oestreich: I would agree with most of that. One of the points that I made in my opening comments was that it's in the interests of UNICEF and the international community in general to lead the opportunity for them to be as innovative as possible. I think one of the real strengths of UNICEF is that because of its decentralized structure, there's a lot of room for people on the ground to figure out what's needed in the situation where they are. Certainly in other parts of the world, I have seen some remarkably innovative ideas about programming and delivering aid to children.
Are they as innovative as they could or should be? I don't know if there is a definitive answer to that, but I would say that from my perspective, and someone else might disagree, but it's in the interests of the international community to leave open the possibility that these organizations are being as innovative as possible. So many international agencies are so centralized and stuck with very specific mandates and sets of metrics that they're supposed to hit that it can sometimes stifle innovation. That's certainly not something that people would want to see.
Senator Andreychuk: Both of you have talked about the changing mandate of UNICEF and UNHCR. We've spent decades developing these organizations and getting some universal acceptance of them, even in conflict zones. The difficulty now is that we have non-state actors who are not differentiating from any humanitarian and political issues. Therefore, the vulnerability of agency staff and their work is coming from ideological bases or just from these non-state actors not differentiating anyone, including in some cases, recently, the Red Cross. How do we start rebuilding some respect for these agencies being separate and apart from any of the actors on any sides of the issue?
Mr. Oestreich: That's a really interesting question and something as an academic that I've been looking at quite a lot.
From the beginning of its interest in humanitarian work, UNICEF has been able to function in places where one of the parties is a non-state actor. They have worked in plenty of places of civil unrest and civil war, where on one side you have a state and on the other side you have a guerilla group, a separatist group or a revolutionary agency. They have been pretty good historically at being able to negotiate with those groups. Even that's an innovation because, technically, non-state actors don't have standing with these international organizations.
Not that long ago I was in India where UNICEF has been negotiating with some of the rebel groups, separatist groups or whatever you want to call them, and it has good standing, a lot of respect and works hard to make sure that these organizations respect them as a neutral broker.
What do you do with a group that simply doesn't respect the Red Cross, UNICEF, UNHCR or independent people working for Médecins Sans Frontières? I don't know that I have an answer for that. That's an enormous challenge that these organizations don't seem to be following a logical course of action in the terms of the way they deal with these agencies. I know UNICEF, UNHCR and other organizations take the safety of their personnel very seriously. If they can't guarantee that safety, then they really can't function or function as well as they'd like to.
I wish I had an answer what to do there, but a lot of scholars are scratching their heads about how you deal with these organizations that don't seem to follow a logical course of action. You can't say, "It's in your interests to allow these organizations to operate, because it's going to help you get support from the people who you want supporting you."
I'm at a loss. I don't know.
Mr. McBride: I would agree with everything that was just said. This is an incredibly complex but important issue. I think the agencies have been wrestling with it for a long time. I might come at it from a slightly different approach.
The guiding resolution on humanitarian assistance is resolution 46/182 from 1991. It lays out the principles that we were talking about a little earlier on neutrality, impartiality, humanity. Those are the guiding principles of the humanitarian organizations. Every year, in particular in the resolutions on strengthening of the coordination of emergency humanitarian assistance of the United Nations, one is adopted by the Economic and Social Council. Then, in the fall, the General Assembly adopts a very similar resolution. There are always several references to the fact that agencies must stick to those principles, and then usually there are additional references that agencies must stay within their mandate. So there is the question about whether it is appropriate for the agencies to negotiate with non-state actors. When they do, I think they almost always make the claim that they are not setting a precedent that legitimates the status of these non-state actors. That's one issue they face.
A second issue they face, because the situations are so dangerous, as you've noted, is that sometimes peacekeeping troops or other supporters or military personnel are involved in helping to deliver the humanitarian assistance. This presents a significant problem for humanitarian agencies because now they're not seen as impartial or neutral by one of the parties. So there's a blurring, and you'll notice in resolutions that there are paragraphs that talk about the need to improve the perception of local communities about what role the agencies are playing so that they are seen in what we hope is the sort of pure form, that they are neutral.
I quite agree with the earlier comment that sometimes they are seen to be the bad guys and the good guys in these situations, and that's certainly the case now with some of the activities being carried out maybe by ISIS. I think most of us would agree with that. Yet, if we begin to record human rights violations and things in even more normal settings, then we risk the possibility that states will tell us to get out because we can only operate in countries where we have the approval and consent of the government. That's another fine line. How much do we criticize a human rights record, and does that jeopardize our ability to deliver the humanitarian assistance to the people who need the assistance?
Senator Andreychuk: Professor Oestreich, you were saying that one area that you thought was not under the UNHCR mandate was people who are forcefully displaced because of climate change, but would that not be the same as any other natural disaster, that, when people move, there's a political element to it as well as a perhaps natural disaster area? If we are stretching interpretations of mandates, would that not be covered already?
Mr. McBride: I think that was my comment about the climate change.
The position UNHCR has taken on that issue is that at least at the moment, if unfortunately this comes to pass and some people have to leave because of rising waters or whatever, they are not covered by a mandate, at least not covered by UNHCR's mandate.
Whether they are internally displaced people or not is even a question. If they have had to leave totally, then probably they would fall into some other category. Some people use the phrase "environmental refugees." UNHCR is uncomfortable with that phrase because it puts refugees back in the phrase, and so they are generally saying "environmentally displaced persons."
I think, at that point, the lead agency that would be drawing attention to it and trying to work out mechanisms to provide assistance to them would probably be OCHA, the United Nations Office for the Coordination of Humanitarian Affairs, because it's their role to deal not only with advocating regarding complex emergencies but also natural disaster-type emergencies. So that's probably the place where that has to start. But, on the other hand, OCHA is not an operational agency, so at some point it would have to find somebody else to actually carry out the work on the field level.
Senator Andreychuk: Thank you.
The Deputy Chair: Senator Eggleton?
Senator Eggleton: Thank you very much for your comments.
I want to focus on the terrible condition that exists in the Middle East, particularly with respect to Syrian refugees both inside and outside of their country.
We had a witness in a previous meeting who indicated some very difficult challenges with respect to education for the young people who are refugees, who are displaced. This is a very important matter for the future of the people of Syria, and yet we find a lot of them are not getting the education that they need while they're in this refugee status.
They mentioned, of course, that some of them have to work to try to provide for themselves or their families. So they try to find some way of giving them some form of education that works within that framework, but then a lot of kids just don't see the value of it because they can't get a secondary level of education. They are only getting a very primary education.
What can be done about that? What can UNICEF and UNHCR do about the education of these kids?
Mr. Oestreich: I'll have to preface my comments by repeating that I haven't been to Syria or to any of the refugee camps in the region that are dealing with Syrian refugees, so I have no real direct knowledge of that particular situation.
In general, of course, UNICEF sees education as part of its core mandate and its core commitments to children and has really innovative ways, things like the school-in-a-box concept, where they're able to deliver basically everything that's needed to help a child with a primary education that can be delivered very quickly and set up very quickly in areas where it's needed.
I don't know that I have a comment specifically on the question of this idea of primary education to secondary education. I would guess that probably the situation there right now is new enough that getting the basic setup is what's needed.
In terms of children understanding the value of an education, I think education has value in and of itself? A primary education, teaching literacy, has a lot of important value, not just in terms of whether you're convincing children that getting a particular education is going to allow them to then get a secondary education and that that's going to lead to employment, but also that health outcomes and other important things for children come particularly from making sure that girls are educated. Girls' education, of course, is an important component of what UNICEF is trying to do.
I don't know that I have a comment specifically to the question of thinking in terms of moving education forward and convincing children this is the way to get themselves out of the situation of being refugees or out of the situation of needing this kind of aid, but I do think it's an important part of the Convention on the Rights of the Child. It's an important part of UNICEF's mandate that they are trying to provide basic education that is going to allow children to make the decisions that are important in their lives and to help them to live a full life. Certainly, they're aware of the need to deal with the psychological effects of conflict, and that may include making children aware of the kinds of options that they have.
I don't know that I can speak specifically to secondary education in Syrian refugee camps.
Mr. McBride: I'm in the same boat as far as speaking to the movement from primary to secondary education, except that I know that these agencies are aware of it and are trying to work on it.
Obviously, one area that would help would be money. Certainly one of the things that the agencies can do, should do and I think are doing is to work with governments where they can and with NGOs to help provide the staffing and the other opportunities in education.
In all of this dismal picture, within the last week, there may have been at least one tiny bright note. A Lebanese paper, The Daily Star, reported that — it's a bad note to start with — there are 1,500 street children in Lebanon, 75 per cent of whom are Syrian refugees and 80 per cent of whom are acting as beggars or street vendors. They did a survey of some of these children and asked what they would like to be doing, and the number one choice, they replied, was education. So at least there's some hope for that.
There are 353,000 refugees in schools, but that leaves several hundred thousand, probably close to a million, who are not.
One of the things that has happened is the initiation about a year ago of the No Lost Generation program by UNICEF, UNHCR, Save the Children and World Vision. It was started to protect the generation of Syrian children from a life of despair, diminished opportunities and broken futures.
Related to that, UNHCR has what they call a five-prong approach. It's easy to talk about the approach. Whether they're able to implement it or not I can't say, but it includes strengthening evidence generation — they need data — strengthening child protection systems through increased awareness, capacity, skills and awareness of service providers; strengthening child, family and community coping mechanisms and self-protection capacities; integrating child protection responses into other sectors, in particular education; and advocating with different stakeholders to influence decisions and actions taken to promote and protect children.
I think it's fair to say the agencies are thinking very hard about these things, but money and the conditions they're working in and the lack of staff in some cases maybe, all of these are factors that are going to make it very hard. These agencies need support from governments and from NGOs.
Mr. Oestreich: I'll just add one quick thing. I think the question of the movement from primary to secondary education is part of the larger question of this idea of "no lost generation." Those are the factors of a more holistic or rights-based approach to children's welfare, where there are a lot of factors involved in making sure the children appreciate that there is life after this situation and that there is an opportunity for them to have a future. That's a multi-pronged thing. That's not just about education; it's about a lot of factors.
Senator Eggleton: I agree with what Professor McBride said a few moments ago, that the young people of Syria do place value on education. I think Syrians for a number of years had a good reputation in terms of their education levels, and of course, I haven't even mentioned post-secondary. You can't get to post-secondary until you get to secondary, and I think a lot of them are using hope. No, we don't want to see a lost generation, but how long is this conflict going to go on? This could go on for another 10 years.
Let me go to a more general question. You mentioned Lebanon, Professor McBride. A lot of the refugees are integrating into the population. I think a lot of us over here, when we think of refugees coming out of the country, we think of them going into camps, and they are to a great extent, such as in Jordan.
In Lebanon, there is more integration into the community. However, there's a lot of conflict coming out of that. The Lebanese people themselves have a lot of issues they have to deal with, yet there is competition for jobs, overstretched public services and the perception that maybe the refugees are getting more attention than some of the local population. This is a general circumstance. It could occur in other places where you get this integration into the community as well.
What can the two agencies do about this? This is a different scenario from the traditional camps. They've worked out a model for a number of years, I'm sure, on how to operate there, but how do they operate in this scenario?
Mr. McBride: Well, you're absolutely right. I think it's actually the case in Jordan as well that the vast majority of refugees are living outside of the camps, and part of the problem with Jordan is nobody's clear on the numbers. In fact, they've just initiated a census for Syrian refugees to try and come to some agreement on the numbers. UNHCR has registered about 600,000 and Jordan claims that there may be 1.2 million refugees in the country. So the census will help, and one of the reasons for doing it is that it would allow parents to — getting back to the education question — put some of their children in school because they would be documented.
In terms of reaching, in general terms, the populations in urban areas, this is a tremendous challenge because you don't always know where they are. They may not even want to have it known that they are refugees if people aren't aware of that, or they may not know that UNHCR is trying to provide services to them.
UNHCR has come up with an urban refugees' policy over the last several years. It's available on the website. I can't cite chapter and verse. So I think UNHCR are certainly conscious of this now. In fact, overall, more than half of the refugees that UNHCR deals with do not live in camps; they live in urban areas or at least in some way outside of the camps.
On the question regarding the competition for resources that the refugees place on societies, I think UNHCR is trying to work with communities, especially where you have the refugee camp situation, to make sure that the communities also get assistance. One might aptly think maybe this is the place where UNHCR has stepped out of its mandate a little bit. But, again, if you think about resolutions, the resolutions are always asking UNHCR to be conscious of that and to recognize that local communities have needs and that local community members should at some point be involved in some of the decision making.
I hope that answers most of your question, and I'll turn it over to my colleague.
Senator Eggleton: Thank you.
Mr. Oestreich: It's a complicated question. UNICEF's policy is every child, everywhere. In a lot of places, UNICEF has to deal with this question of refugee children or displaced children who are not receiving the benefits of the country in which they are because they are stateless or they're refugees. They may have fallen off the radar of some of the local agencies that are supposed to be helping them.
An important part of what UNICEF does is to work with local agencies and institutions, both governments and NGOs, to find out where these children are and be innovative in trying to reach them. Again, this gets to the question of the necessity of being innovative. These organizations have to work through local actors. UNICEF has only so many resources. It is a challenge, but it's definitely part of their mandate.
I wanted to also add to that the question of donor fatigue. This is something you see both in specific countries and in the international community in general. At some point, the refugee problem becomes so overwhelming and destabilizing to countries that are dealing with these refugees that either the resources are no longer available because it simply seems that there are no solutions anyway, or states decide that they have other priorities they need to focus on and that these refugee children are the problem of the international community. That's something international organizations are aware of, and it's a serious challenge.
Senator Hubley: Thank you for your presentations this morning.
You were just beginning to touch on funding, Professor Oestreich, and I'd like to follow up on that. Of course, funding is necessary to move forward with your mandate and certainly the programming that you're able to put forward.
When funds or donations fall short, who sets the priority for the actions that will be taken?
Mr. Oestreich: I'd have to defer on that. You refer to it as my work. I'm an academic from outside who is studying UNICEF. I hate to say it, but I'm not sure I feel qualified to answer that question. That's a question at an operational level that I simply don't know the answer to.
Senator Hubley: UNICEF certainly does have a very aggressive outreach for funding. I'm wondering if you've looked into that part of the organization.
Mr. Oestreich: No, I really haven't, so I'm going to be careful about what I say. As you say, it has a very aggressive outreach. It raises a lot of money from a lot of organizations, both national committees for UNICEF around the world, some large donors and various appeals.
I get an email about every month from UNICEF asking me to donate money, but the technical aspects of how that fundraising works or exactly who makes the decision about how that money is spent is not something that I have any expertise on. So I'm afraid I have to pass.
Senator Hubley: Thank you.
Professor McBride, do you have anything to add?
Mr. McBride: I'm afraid I have worked on some of the funding, particularly when I was on the UNHCR 2004 team that is re-thinking UNHCR's role within the UN system. Of course funding is a major concern for UNHCR, as for all agencies.
A few years ago, member states in the executive community asked UNHCR to go to a needs-based budget rather than proposing budgets on the basis of how much we think we can get and so this is how much we will ask for. I think that was the right thing to do.
Of course, as you can expect, that raised the amount of money we were asking for considerably. It probably almost doubled the amount of money. One of the things that tells you is that there were probably a lot of programs we thought we should be doing that we weren't.
The one problem with doing that, and Dr. Oestreich mentioned the idea of donor fatigue, is even though we are now asking for what we think we need, we are not always getting what we think we need, and that leads to your question; what do we do then?
I think UNHCR has a pretty thorough budget process where there's a lot of input from the field level. If we're talking about a shortfall of 5 or 10 per cent in a particular area, then the people in the field would probably make judgments about which programs they would have to discontinue, which ones they could modify, and so on.
I'm sure you're aware that one of the big concerns agencies have with funding is the earmarking that goes on. Fortunately Canada gives us quite a bit of money. You're one of UNHCR's largest donors and you provide always at least a portion of that that is not earmarked.
One of our problems is that if money comes in earmarked for a particular program and we are able to run the program efficiently and thus maybe save some of that money, we can't use it anywhere else. It's sort of there maybe for the next year of that particular program. That is one problem we have with the funding.
The other one, of course, is the protracted situations. Most refugee situations are protracted, meaning five years or more. I think I saw data from one of your presenters earlier, where the average time in a refugee camp is 17 years. These situations tend to be and sometimes we even refer to them as forgotten emergencies because everybody, rightfully, is rushing to try and deal with Syria, Somalia, South Sudan or other places in Africa.
So there are all sorts of funding issues. The number of donors isn't enough. We're trying to broaden the donor base. We've tried to improve our private funding, but I'm pretty sure it's obvious to everyone that UNHCR is not nearly as good at that as UNICEF is. They are the model fundraiser among humanitarian agencies.
We are trying to have more money. We are trying to have it as not earmarked, but we are always facing shortfalls, in particular for the protracted situations. It means programs get dropped, and that's very unfortunate.
Senator Hubley: Thank you very much.
The Deputy Chair: Just a quick follow-up to the lack of funding. Has this created any tensions between different organizations?
Mr. Oestreich: I can't speak to the Syria situation in particular, but funding certainly does cause tension between various organizations. I would repeat what Professor McBride said about the forgotten emergencies. There's also tension where a new emergency comes along and older ones are forgotten, not just the international organizations, but all the NGOs. The funders go rushing off to whatever the immediate problem is and other problems get forgotten. Some of this is simply competition among agencies. I'm speaking more in terms of NGOs, but to some extent the international transnational aid organizations as well find themselves in competition. If you want to send out an email saying, "Help the children of Syria," you get more money than if you send out an email where you're reminding people that there are still terrible crises in Libya, Darfur or Somalia.
Yes, there are certainly some tensions between organizations, and I think a lot of the reforms that we've talked about before in terms of the delivery of international aid is supposed to help with some of that. By having the level of coordination, it makes it clear exactly how resources are being shared and why.
Mr. McBride: I agree with all of that. There are turf fights among agencies. I'm sure there's always been competition for the funding. A few years ago one of the things that was done, and OCHA took the lead, was to create the Consolidated Appeals Process, whereby the agencies and the UN country team are supposed to sit down and come up with a common appeal that prioritizes the needs of the area. This way, donors have a sense of, okay, this is where our money is going to go first, and here are other places the money can go. We recognize it. It's there.
Then of course there is competition with NGOs. Although the agencies are often funding the NGOs, about 30 per cent of UNHCR's budget, maybe a little more, actually goes to NGOs for them to carry out programs because obviously UNHCR itself cannot do all of that. I keep seeing different numbers for this, but I know UNHCR works with at least 600 different NGOs around the world.
There is a really good example of the turf fight. If some of you are familiar with David Rieff's book, A Bed for the Night: Humanitarianism in Crisis, where he was interviewing some of the agencies in Bosnia and Herzegovina where UNHCR had been given the lead agency role. I won't name the agency — and it's not UNICEF — but when asked of one of the agencies what they would have done differently regarding Bosnia and Herzegovina. The response was, "We would have gotten here sooner, then we would have been the lead agency."
So agencies are conscious of their role relative to one another, although I think the cooperation between UNICEF, UNHCR and WFP, over the years, along with the International Red Cross and Red Crescent Movement, has been excellent. There are memorandums of understanding about what their particular roles are. We could not function, even in dealing with children, without UNICEF, or with food, without WFP.
The other thing I would say is that there's a lot more tension in New York among the headquarters than you find in the field. In the field people need each other. They have to work together, in part because they're often in situations where they're not safe and they depend on each other. I think you get much more cooperation in the field and much less tension there than you might get with people in New York or Geneva who are worried about the mandate, encroachments on the mandate and who's going to get the responsibility for this and that.
The Deputy Chair: I thank both witnesses, Professor Oestreich and Professor McBride. We've come to the end of our time.
(The committee adjourned.)