Children’s Rights Report – Draft Framework

This Study (Chapter 1)

In November 2004, the Standing Senate Committee on Human Rights was authorized by the Senate to examine and report upon Canada’s international obligations with regard to the rights and freedoms of children. From the outset, the Committee reviewed Canada’s international obligations with respect to children’s rights as a case study reflecting the broader implications of ensuring that domestic legislation and policies comply with Canada’s international human rights obligations, and in keeping with a broader mandate that began with this Committee’s first report in 2001, Promises to Keep: Implementing Canada’s Human Rights Obligations. The primary aim of this study was to assess whether the United Nations Convention on the Rights of the Child has been implemented, whether Canadian children are benefiting from it, and whether the Convention has been used as a tool to address key problems of facing children in this country.

The Committee also looked at the role of Parliament within this framework.

Canadian Implementation of International Law (Chapter 2)

In November 2005, the Committee tabled its Interim Report, Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, in the Senate. That report built on Promises to Keep, discussing the application of the international obligations in domestic law.

In Canada, international human rights treaties are rarely incorporated directly into Canadian law, but are indirectly implemented by ensuring that pre-existing legislation is in conformity with the obligations accepted in a particular convention. Parliament plays no role in ratification, thus international human rights treaties that are not directly incorporated into domestic legislation bypass the parliamentary process. Implementation of international law where provincial laws and policies are affected is the responsibility of the federal, provincial and territorial governments. The federal government has adopted a policy of consulting with provinces and territories before signing and ratifying treaties on matters within their jurisdiction in order to deal with these complexities.

With respect to Canada’s reporting obligations under human rights treaties, the Continuing Committee of Officials on Human Rights facilitates preparation of Canada’s country reports to the United Nations human rights treaty bodies. When the treaty body issues its Concluding Observations, the Continuing Committee’s role is to keep provincial and territorial governments apprised of any comments on the scope of the rights guaranteed by the convention.

One of the key concerns expressed by witnesses is the federal government’s unwillingness to directly incorporate international human rights treaties. However, the government has an obligation to make best efforts to comply with international treaties domestically through domestic implementation, no matter what jurisdictional hurdles are entrenched in the Constitution. In addition, the Committee heard that the Continuing Committee is not an efficient mechanism for ensuring coordination among jurisdictions or with the various treaty bodies, because of its limited mandate. Current reporting and dissemination processes are too complex, and concerns have been expressed about the lack of transparency and lack of real public or parliamentary input in the reporting and follow-up process, as well as the lack of public dissemination of the treaty bodies’ Concluding Observations.

Children’s Rights and the Canadian Context (Chapters 3 to 17)

Chapter 3 provides an overview of the Convention on the Rights of the Child – the principles enshrined in it, the Optional Protocols, and the role of the UN Committee on the Rights of the Child. Canada signed the Convention on 28 May 1990 and ratified it on 13 December 1991. This chapter focuses on the value of a rights-based approach, which emphasizes that all rights are equal and universal; that all people, including children, are the subject of their own rights and should be participants in development, rather than objects of charity; and that an obligation is placed on states to work towards ensuring that all rights are being met. The rights-based approach is of particular importance in the discussion of children’s rights because of children’s often intense vulnerability, the frequent competition between children’s rights and those of adults, and the resulting ease with which a more paternalistic and needs-based approach can be adopted. Children’s voices rarely inform government decisions, yet they are one of the groups most affected by government action or inaction. Children are not merely underrepresented; they are almost not represented at all. The Convention on the Rights of the Child properly puts children at the centre, in the context of their family, their community, and their culture. Nevertheless, there is a real gap between rights rhetoric and the reality of children’s lives in Canada – many people in Canada and elsewhere continue to resist full implementation of the Convention.

Chapter 4 discusses implementation of the Convention in Canada, including the lack of enabling legislation, the weight given to judicial interpretation, Canada’s reservations to the Convention and the impact of Canada’s federal nature on implementation. The Committee finds that the federal government’s approach to compliance with children’s rights, and with the Convention in particular, is inadequate. Jurisdictional complexities, the absence of effective institutions, an uncertain approach to human rights law, and lack of transparency and political involvement indicate that the Convention is being ineffectively applied in the Canadian context. What is needed to push both the issue and respect for the democratic process further is enhanced accountability, increased parliamentary and public input, and a more open approach to compliance that promotes transparency and enhanced political will.

Chapters 5 to 16 discuss Canadian compliance with specific articles of the Convention on the Rights of the Child. These chapters highlight the Committee’s observations and recommendations with respect to implementation and use of the Convention in terms of issues of participation and expression, violence against children, exploitation of children, youth criminal justice, child welfare, adoption and identity issues, migrant children, early childhood development and care, child poverty, health issues, sexual minority children, and Aboriginal children. The Committee’s intention was not to study these critical issues exhaustively for answers, but to investigate whether these issues and concerns are dealt with using the Convention on the Rights of the Child. The Committee’s observations are accompanied by suggestions and recommendations as to how the federal, provincial, and territorial governments can all move forward to ensure the protection of children’s rights in Canada.

In Chapter 17 the Committee concludes that the Convention on the Rights of the Child is not solidly embedded in Canadian law, in policy, or in the national psyche. Canadians are too often unaware of the rights enshrined in the Convention, while governments and courts use it only as a strongly worded guiding principle with which they attempt to ensure that laws conform, rather than acting as if they are bound by it. Also, no body is in charge of ensuring that the Convention is effectively implemented in Canada, and the political will is lacking. Implementation is key to making the Convention work, and for Canada to claim that it fully respects the rights and freedoms of its children, it should improve its level of actual compliance. The federal government needs to take the lead with respect to implementation of the Convention.

The Committee concludes that the federal government does not have effective mechanisms in place to ensure compliance with its international human rights treaty obligations. As a result, the Committee proposes measures to guarantee systematic monitoring of the Convention’s implementation in order to ensure effective compliance. These include proposals for the establishment of a federal interdepartmental implementation working group to coordinate and monitor federal legislation and policy affecting children’s rights, and an independent children’s commissioner to monitor government implementation of children’s rights at the federal level and liaise with provincial child advocates. The Committee also emphasizes the need for awareness-raising with respect to both the Convention and the rights-based approach embedded within it. Most importantly, through its recommendations the Committee seeks to strengthen the active involvement of children in all institutions and processes affecting their rights.

Proposed Framework for Implementing International Law in Canada (Chapter 18)

Finally, in Chapter 18, the Committee emphasizes that Canada possesses no modern, transparent, and democratic international human rights treaty implementation process. Further, no institution has ultimate responsibility for ensuring that international human rights conventions are effectively implemented. In response to this situation, the Committee outlines a framework for improving the process whereby Canada signs, ratifies and incorporates its international human rights obligations. This proposal calls for enhanced levels of accountability that will help to translate Canada’s international human rights obligations into meaningful law, policy, and practice. In particular, the proposal emphasizes the need for Canada’s ministers responsible for human rights to take ownership for Canada’s international human rights obligations, and meet immediately, with renewed vigour, to ensure effective consultations and implementation of Canada’s international human rights obligations. It is the hope of the Committee that some of the entrenched problems facing children today can be ameliorated by embracing the United Nations Convention on the Rights of the Child as a binding commitment for our children’s benefit.

RECOMMENDATION 1 – Participation and Expression (page 60)

Pursuant to articles 12 to 15 of the Convention on the Rights of the Child, the Committee recommends that the federal government dedicate resources towards ensuring that children’s input is given considerable weight when laws, policies and other decisions that have a significant impact on children’s lives are discussed or implemented at the federal level.

RECOMMENDATION 2 – Corporal Punishment (page 70)

Pursuant to articles 19 and 28 of the Convention on the Rights of the Child, the Committee recommends that the federal government take steps towards the elimination of corporal punishment in Canada. Such steps should include:

· The immediate launch of an extensive public and parental education campaign with respect to the negative effects of corporal punishment and the need to foster enhanced parent-child communication based on alternative forms of discipline;

· Calling on the Department of Health to undertake research into alternative methods of discipline, as well as the effects of corporal punishment on children;

· Repeal of section 43 of the Criminal Code by April 2009; and

· Calling on the Department of Justice to undertake an analysis of whether existing common law defences – such as necessity and the de minimis defence – should be made expressly available to persons charged with assault against a child.

RECOMMENDATION 3 – Bullying (page 74)

Pursuant to article 19 of the Convention on the Rights of the Child, the Committee recommends that the federal government implement a national strategy to combat bullying in Canada, accompanied by a national education campaign in cooperation with provincial and territorial governments to teach children, parents, teachers, and others about bullying, and to promote conflict resolution and effective intervention strategies.

RECOMMENDATION 4 – Children Involved in Armed Conflict
(page 77)

Pursuant to article 38 of the Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflicts, the Committee recommends that the Canadian Forces:

· Develop a database to track statistics with respect to the recruitment and involvement of those under the age of 18 in the Canadian Forces;

· Make its recruitment policies with respect to those under 18 years of age openly available to the public;

· Review and assess recruitment practices to ensure full compliance with the Convention, including ensuring that priority in the recruitment process is given to those who are 18 years of age or older; and

· Report back to this Committee in July 2009 in order to review recruitment policies and compliance with the Convention.

RECOMMENDATION 5 – UN Study on Violence (page 77)

The Committee recommends that the federal government respond to the UN Study on Violence Against Children, and that it inform the international community, Parliament, and the Canadian public how it is responding to issues of violence against children and how it intends to improve upon policies to bring Canada into compliance with the Convention on the Rights of the Child.

RECOMMENDATION 6 – Commercial Sexual Exploitation (page 82)

Pursuant to articles 34 to 36 of the Convention on the Rights of the Child and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, the Committee recommends that the federal government develop and implement a strategy to combat the commercial sexual exploitation of children that will address:

· The predators who create the demand for the commercial sexual exploitation of children;

· Businesses and networks based on the commercial sexual exploitation of children;

· New technologies and their impact on child pornography and the commercial sexual exploitation of children; and

· Problem areas in terms of the involvement of children in the fashion industry, in marketing, in the media, and in the travel and tourism industry.

RECOMMENDATION 7 – Child Labour (page 85)

Pursuant to articles 32 and 36 of the Convention on the Rights of the Child, the Committee recommends that the federal, provincial and territorial governments, as well as parents, ensure that safe conditions exist for children who do work, and that such children are informed of their rights and encouraged to remain in school.

RECOMMENDATION 8 – Children in Conflict with the Law (page 97)

Pursuant to articles 37 and 40 of the Convention on the Rights of the Child, the Committee recommends that the federal government:

· Withdraw its reservation to article 37 of the Convention and take concrete measures to work with the provinces and territories to ensure that youth are no longer detained with adults, and males no longer detained with female young offenders;

· Undertake to work proactively with the provinces and territories to assess whether the Youth Criminal Justice Act is working and to ensure that alternative measures are effectively implemented for youth in conflict with the law; and

· Work with the provinces and territories to provide training for child welfare authorities and health professionals in order to help them identify problems early in order to implement preventative intervention strategies for children at risk of coming into conflict with the law.

RECOMMENDATION 9 – Child Protection (page 105)

Pursuant to articles 9, 12, 19, 20, and 25 of the Convention on the Rights of the Child, the Committee recommends that the federal government organize federal- provincial-territorial consultations with respect to child protection issues and children in the care of the state. These consultations should focus on whether the Convention has been implemented in the following areas:

· The need to involve youth more fully in the child protection process;

· Working towards a uniformly legislated age of 18 for cut-off from protection; and

· The need for continuing support for youth exiting the child protection system.

RECOMMENDATION 10 – Adoption (page 109)

Pursuant to articles 5, 18, 20 and 21 of the Convention on the Rights of the Child, the Committee calls on governments across Canada to recognize and address the adoption crisis in this country, particularly in the case of Aboriginal children. The Committee recommends that the federal government organize consultations with its provincial and territorial counterparts with a view to:

· Increasing federal funding to promote the placement of children in permanent homes and to provide support services aimed at keeping children within their families;

· Streamlining the adoption process; and

· Reviewing Canada’s adherence to the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption.

RECOMMENDATION 11 – Identity (page 115)

Pursuant to articles 7 and 8 of the Convention on the Right of the Child, the Committee recommends that the federal-provincial-territorial negotiations on adoption proposed in Recommendation 10 should include consideration of access to a biological parent’s identity and of the benefits of identity disclosure vetos. The Committee also recommends that Assisted Human Reproduction Canada review the legal and regulatory regime surrounding sperm donor identity and access to a donor’s medical history to determine how the best interests of the child can better be served.

RECOMMENDATION 12 – Migrant Children (page 138)

Pursuant to articles 7, 9, 10, 11, 21, 22, and 35 of the Convention on the Rights of the Child and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, the Committee recommends that:

· The Senate committee examining Bill C-14 take the concerns voiced in this report into serious consideration and that if the Bill is passed, the federal government implement a pilot project to determine whether immigration officials can rely on the provincial adoption approval process to assess whether the best interests of the child are being served;

· The Department of Citizenship and Immigration devote more resources to rectify backlogs delaying family reunification, particularly in its overseas visa offices, and strongly consider changes to immigration guidelines to allow children to be processed inland like spouses, as well as allowing separated children to include their parents on applications for permanent residence;

· Specific measures be put in place to ensure effective identification and protection of potentially separated children at the border;

· Priority always be given to the best interests of the child when dealing with the detention of migrant children;

· Migrant children are returned to their country of origin only after a final determination of whether or not compelling humanitarian and compassionate grounds exist to allow the child to remain in Canada, and a comprehensive pre-removal risk assessment with significant emphasis on the best interests of the child has been undertaken; and

· All immigration and border services officials dealing with children in any way receive orientation and ongoing training to ensure that they are fully aware of children’s rights, as well as how to communicate effectively with children of different cultural backgrounds.

RECOMMENDATION 13 – Early Childhood Development (page 145)

Pursuant to articles 18, 28, and 29 of the Convention on the Rights of the Child, the Committee recommends that the federal government meet with provincial and territorial governments to help coordinate the establishment of measurable standards and guidelines for delivering early childhood development and child care to children across the country, matched by adequate funding. Consultations should begin immediately, with proposed solutions to be presented to the Canadian public by July 2009.

RECOMMENDATION 14 – Child Poverty (page 153)

Pursuant to articles 26 and 27 of the Convention on the Rights of the Child, the Committee recommends that the federal government develop a federal strategy to combat child poverty that should be put into effect as soon as possible, accompanied by clear goals and timetables. Among other things, such a plan should include preventative measures aimed at high-risk families and a comprehensive housing strategy.

RECOMMENDATION 15 – Children’s Health (page 164)

Pursuant to articles 2, 23, 24, 33, and 39 of the Convention on the Rights of the Child, the Committee recommends that the federal, provincial, and territorial governments implement an improved process to improve services to special needs children by July 2008. Working to resolve this crisis on an immediate and on-going basis, governments should develop a consultation process to with advocacy groups, service providers, health professionals and special needs children. Early intervention should be a key focus of these consultations.

RECOMMENDATION 16 – Sexual Minority Youth – Statistics
(page 168)

Pursuant to article 2 of the Convention on the Rights of the Child, the Committee recommends that the federal government act to fill the significant gaps in knowledge and statistics with respect to sexual minority youth and gender differences therein.

RECOMMENDATION 17 – Sexual Minority Youth (page 168)

Pursuant to article 2 of the Convention on the Rights of the Child, the Committee recommends that all policies and strategies implemented by the federal government with respect to youth take into account the specific needs of sexual minority youth.

RECOMMENDATION 18 – Aboriginal Children (page 191)

Pursuant to articles 2 and 30 of the Convention on the Rights of the Child, the Committee recommends that:

· Section 67 of the Canadian Human Rights Act be repealed;

· The federal government target funding as a priority for “least disruptive measures” with respect to child welfare, accompanied by an increased emphasis on prevention and early intervention;

· The federal government make housing a top priority and develop enhanced initiatives to promote economic development on-reserve;

· The federal government provide more funding to ensure that support services continue for Aboriginal children living off-reserve;

· The federal government review the services that it provides to Aboriginal communities to ensure that the approach and content are effectively tailored to meet the specific needs of Aboriginal children, youth, and families; this includes working directly with Aboriginal communities in the development of programs and services designed to meet their needs;

· The federal government expand the ability of health services to provide in-home supports, and to get involved early and work with children in their homes;

· The Department of Indian Affairs and Northern Development provide our Committee with an update on the results of the youth engagement strategy on suicide, as well as the status of the National Aboriginal Youth Suicide Prevention Strategy – this Strategy should be implemented as swiftly as possible;

· The federal government accelerate work with provincial and territorial ministers of education to discuss ways in which Aboriginal people can be encouraged to become teachers and to work on reserves;

· While recognizing the need for Aboriginal teachers on-reserve, the federal government work with provincial and territorial ministers of education to remove barriers to facilitate the employment of Aboriginal teachers off-reserve if they so desire;

· The federal, provincial, and territorial governments work with Aboriginal leadership to carefully examine policies that have an impact on Aboriginal children’s lives through the framework of the Convention on the Rights of the Child; and

All federal policies and legislation with respect to Aboriginal children place particular emphasis on the need to take the cultural needs of Aboriginal children into account.

RECOMMENDATION 19 – Compliance with the Convention (page 195)

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

RECOMMENDATION 20 – Children’s Commissioner (page 214)

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

RECOMMENDATION 21 – Interdepartmental Implementation Working Group (page 222)

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

RECOMMENDATION 22 – Continuing Committee of Officials on Human Rights (page 229)

The Committee recommends that responsibility for the Continuing Committee of Officials on Human Rights be transferred immediately from the Department of Canadian Heritage to the Department of Justice.

RECOMMENDATION 23 – Ministerial Responsibility (page 239)

The Committee recommends that the federal, provincial and territorial ministers responsible for human rights meet immediately with renewed vigour to take ownership for effective consultations and implementation of Canada’s international human rights obligations.

RECOMMENDATION 24 – Framework for Ratification and Implementation of Canada’s International Human Rights Obligations (page 240)

a) The Committee recommends that the federal government develop a new policy framework for the signature, ratification and implementation of Canada’s international human rights obligations, including:

· Notice to Parliament, the provinces and territories at the commencement of human rights treaty negotiations, with an undertaking to begin consultations with Parliament, all levels of government, and stakeholders;

· Regular reporting on the progress of international treaty negotiations to Parliament, the provinces and territories, and the public;

· Production of a national impact study to be made available to all involved in the consultations;

· Regular feedback from those involved in the consultation process with the federal government;

· Tabling of a “Declaration of intent to comply” in Parliament signalling the executive branch’s intent to proceed towards signature of the international instrument, accompanied by a reasonable timeframe for Parliament to provide its input before signature; and

· Tabling of the international instrument in Parliament once it has been ratified by the Executive, accompanied by an implementation plan including legal and financial implications, and a timetable for implementation. Parliament should be given sufficient time to provide input into this plan.

b) The Committee recommends that the federal government certify that all new federal legislation passed is in compliance with Canada’s international human rights obligations.

c) The Committee recommends that the federal government develop a transparent and inclusive process to ensure consultation with Parliament and the public when preparing Canada’s country reports to the various UN treaty bodies. Canada’s country reports, the UN treaty bodies’ Concluding Observations, and a follow-up Government Response should be tabled in Parliament and referred for committee scrutiny, subject to a fixed timeline for response.

A. THE MANDATE

On 3 November 2004, the Standing Senate Committee on Human Rights (“the

Committee”) was authorized by the Senate to examine and report upon Canada’s international obligations with respect to the rights and freedoms of children. In particular, the Committee was authorized to “examine our obligations under the United Nations Convention on the Rights of the Child; and whether Canada’s legislation as it applies to children meets our obligations under this Convention.”

The Committee heard from more than 215 witnesses during its intensive study of the impact of the UN Convention on the Rights of the Child[1] (“the Convention”) on Canadian law. From the outset, the Committee reviewed Canada’s international obligations with respect to children’s rights and freedoms as a case study reflecting the broader implications of ensuring that domestic legislation and policies comply with Canada’s international human rights obligations, and in keeping with a broader mandate that began with this Committee’s first report in 2001, Promises to Keep: Implementing Canada’s Human Rights Obligations.[2]

In terms of children’s rights more specifically, the Committee sought to answer the following questions: Is Canada implementing the Convention on the Rights of the Child in domestic law and policy, and if so, how? Are all children in Canada benefiting from the Convention? Are specific groups of vulnerable children benefiting from it? Has the Convention furthered federal, provincial, and territorial policies for such children? Are the federal, provincial, and territorial governments and society responding to the challenges confronting today’s children? The Committee proceeded to evaluate obstacles to the protection of children’s rights and freedoms as enunciated by the Convention on the Rights of the Child, looking at whether Canadian policy and legislation reflect the provisions of, and are in compliance with international obligations under, this international human rights instrument. Although the Committee focused its attention on federal government initiatives in this regard, it recognizes that Canada’s provincial and territorial governments have a concomitant obligation to implement the Convention on the Rights of the Child within their respective jurisdictions. The Committee also looked at the role of Parliament within this framework.

While the Committee originally received a mandate to report back to Parliament by 22 March 2005, it quickly realized that a much more exhaustive study into children’s rights was emerging from its investigations. Because of this, and the exigencies of the parliamentary calendar, the deadline for presentation of the Committee’s final report was ultimately extended to 31 April 2007, and the Committee tabled an Interim Report in the Senate in November 2005, entitled Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children.[3]

B. THE COMMITTEE’S WORK

1. An In-Depth Examination of the Canadian Context and Fact-Finding Missions Abroad

a) The Canadian Context

Between December 2004 and October 2006, the Committee met with witnesses[4] in Ottawa to discuss the rights of children and the manner in which Canada is implementing its international obligations under the Convention. Witnesses represented perspectives from government, the academic, legal and advocacy fields, and youth. The Committee also held a series of hearings across Canada to examine the particular needs and concerns of provincial government officials, provincial ombudsmen for children, non-profit service organizations, and children themselves. In St. John’s, Newfoundland; Fredericton, New Brunswick; Charlottetown, Prince Edward Island; Halifax, Nova Scotia; Winnipeg, Manitoba; Regina, Saskatchewan; Edmonton, Alberta; Vancouver, British Columbia; Montréal, Quebec; and Toronto, Ontario, the Committee met with witnesses to discuss the provincial laws currently in place, how those laws are being implemented, various concerns surrounding children’s rights, awareness of the Convention and children’s rights, and how children are affected by laws and policies at the municipal, provincial, and federal levels. Throughout these hearings the Committee placed special emphasis on hearing the voices of children themselves. This testimony, combined with the UN Committee on the Rights of the Child’s Concluding Observations with respect to Canada, make up the prime source of evidence for our report. As a final note, it is important to understand that when the Committee refers to the federal government’s position in this report, it is referring the position of cumulative Canadian governments, rather than the position of one particular government in time.

b) The Comparative Analysis

In addition to its hearings in Canada, the Committee went on two fact-finding missions abroad to conduct comparative analyses, and to explore the intricacies of international human rights mechanisms and international perspectives on the Convention, as well as examining how other countries are implementing the Convention. Early in its mandate, the Committee travelled to Geneva, Switzerland, to meet with United Nations officials and other institutions to gain a better understanding of Canada’s international obligations with regard to children’s rights under the Convention and other UN instruments as a basis for its future work. At that time, the Committee observed proceedings before the Committee on the Rights of the Child and met with its members for a perspective on the Convention and the operation of the monitoring body, and to receive comments and criticisms on Canada’s progress in meeting its obligations. The Committee also met with: the NGO Group for the Convention on the Rights of the Child; officials from the United Nations High Commissioner for Refugees; officials at UNICEF (the United Nations Children’s Fund) working with the UN Study of Violence Against Children; officials at the International Labour Office; officials at the Inter-Parliamentary Union; and Mehr Khan Williams, the Deputy High Commissioner for Human Rights (as she then was).

During that same fact-finding mission, the Committee travelled to Stockholm, Sweden, often seen as a leader with respect to implementation of the Convention. The Committee took this opportunity to learn how a like-minded government undertakes its reporting obligations under the Convention, and implements its international obligations in domestic law. The Committee met with a network of parliamentarians working on children’s rights, as well as officials from the Swedish Ministry of Health and Social Affairs. Finally, the Committee met with Lena Nyberg, the Children’s Ombudsman in Sweden, to hear about the operation of her office and her perspective on the status of children’s rights in Sweden. Our Committee learned that although Sweden declared its commitment to the Convention through a Bill approved by Parliament and conducted a review of its legislation with respect to children, the country has not directly implemented the Convention into specific enabling legislation.

In October 2005, the Committee travelled to the United Kingdom to continue with its comparative analysis, given the similarities between the United Kingdom and Canada in terms of parliamentary framework and approach to international law. The British government is currently dealing with many of the same issues as Canada, such as treatment of children in the criminal justice and child welfare systems, corporal punishment, and high rates of child poverty. The Committee met with researchers and officials from various departments and organizations in London and Edinburgh, including: the All Party Parliamentary Group on Children; the Joint Committee on Human Rights; the Scottish Youth Parliament; and the Children’s Commissioners for England and Scotland. The Committee also met with a variety of voluntary sector organizations and gained their perspectives on the implementation of children’s rights and the ability of the government to meet its obligations.

During this mission, the Committee also travelled to Oslo, Norway. It found that not only did Norway lead the way for the world by establishing the first-ever national children’s ombudsman in 1981, it was the only dualist[5] country that had expressly incorporated the Convention on the Rights of the Child through domestic enabling legislation.[6] The Committee met with officials from the departments of Foreign Affairs, Justice, and Children and Family Affairs, as well as researchers and organizations, including the Ombudsman for Children, Save the Children Norway, and Childwatch International Research Network.

2. Who’s in Charge Here? The Interim Report

In November 2005, the Committee tabled its Interim Report (Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children) in the Senate. That report discussed the history and background of children’s rights in Canadian and international human rights law, as well as the application of the Convention in domestic law. It also discussed lessons learned, highlighting witnesses’ concerns about the lack of full implementation of the Convention by the federal, provincial, and territorial governments because of jurisdictional issues, the apparent unwillingness of various levels of government at times to comply strictly with the terms of the Convention, the lack of uniform standards, an over-complex reporting process to the Committee on the Rights of the Child, and a lack of public awareness about the Convention and children’s rights.

The Interim Report ultimately focused on the process of implementation of international law in Canada, with particular emphasis on children’s rights and the Convention on the Rights of the Child. In it, the Committee explored witnesses’ concerns and recommended a number of mechanisms to improve Canada’s ratification and incorporation processes with respect to both the Convention on the Rights of the Child and international human rights treaties more generally. Based on an approach utilizing policy, legislation, and education, the Committee’s recommendations aimed to create a more effective and accountable system. The Committee also suggested means to ensure a more effective application of the Convention in Canada. Through the Interim Report, the Committee called on the federal government to comply with its legal obligations respecting children – by improving institutions, public policy, and laws that affect them. However, we also noted that the provincial and territorial governments have jurisdiction over many aspects of children’s rights and need to be included in any discussion with respect to more effective implementation.

3. This Final Report

Using the Interim Report as a departure point, this Final Report reiterates and reinforces those earlier more process-oriented recommendations and goes on to focus on specific articles of the Convention that were signalled to the Committee as issues of particular concern in Canada. Broadly, these included issues of participation and expression, violence against children, exploitation of children, youth criminal justice, child welfare, adoption and identity issues, migrant children, health issues, early childhood development and care, child poverty, sexual minority children,[7] and Aboriginal children. In continuing its in-depth examination of these issues, the Committee attempted to respond to concerns that it heard expressed across Canada in order to ensure respect for and effective implementation of specific articles of the Convention to benefit all children, in particular those most marginalized in our society.

This chapter uses the Committee’s previous reports, Promises to Keep and Who’s in Charge Here?, as building blocks to provide an overview of the implementation of international treaties in Canadian law before delving into the specifics of the Convention on the Rights of the Child.

A. RATIFICATION

Canada’s executive branch of government has the power to sign and ratify international treaties. This power is not specifically delineated in Canada’s Constitution; rather, authority to do so stems from the Royal Prerogative. Cabinet prepares an Order in Council authorizing the Minister of Foreign Affairs to sign an Instrument of Ratification. Once this Instrument is deposited with the appropriate authority, it is considered that Canada has ratified the convention.[8]

Parliament, representing the legislative branch of government, is not involved in this process. There is currently no formal role for Parliament, with no legal requirement for parliamentary approval or study of a treaty prior to ratification. In fact, Parliament is not notified when treaty negotiations begin, nor is it consulted concerning the preparation, cost, desirability or impact of such a treaty. Only on an ad hoc basis does the government table treaties with Parliament following their ratification. As a result, international human rights treaties that are not directly incorporated into domestic legislation bypass the parliamentary process.[9]

B. RESERVATIONS

At the time of ratification, the Executive also has the power to enter reservations to international treaties that allow them. A reservation is a unilateral statement made when signing or ratifying a treaty which essentially excludes or modifies the application of certain provisions of the treaty in the reserving state.[10] Its purpose is to allow a state to ratify an international instrument in order to let the consensus document go forward, while still recognizing that a certain provision within that instrument is not in this country’s best interests. Although the Vienna Convention on the Law of Treaties discourages states from making reservations and requires that they “must be compatible with the goal and objective of the treaty,”[11] ultimately, reservations allow the international community to reach a compromise – encouraging the participation of as many states as possible by allowing them to protect important national interests, while still ensuring the integrity of the treaty.[12] Canadian governments have traditionally been opposed to making reservations to human rights treaties based on the “belief that human rights treaties must establish universal schemes rather than a collection of different legal programs for each State.”[13]

C. APPLICATION AND IMPLEMENTATION

Government and academic witnesses appearing before the Committee for both this study and Promises to Keep described the process of implementing international treaties in domestic law in some detail. They highlighted the fact that Canada operates according to a “dualist” model similar to many other Commonwealth nations insofar as the actual incorporation and application of international treaties in domestic law is concerned. In Canada, a treaty that has been signed and ratified by the government requires incorporation through domestic legislation to be actually enforceable at the national level – this is neither a self-executing nor an automatic process.[14] This is in contrast to the monist model operational in countries such as the United States, where once Congress ratifies a treaty, that instrument is enforceable in American law.[15] As stated by Maxwell Yalden, former member of the UN Human Rights Committee, “Canada is a dualist country where, in theory, we must legislate in order to bring an international treaty into Canadian law in order for it to be justiciable in the courts.”[16] Despite popular misconceptions, signing and ratifying a treaty have limited legal effect, if any, in domestic law.

Witnesses from the departments of Justice and Foreign Affairs noted that the Canadian government has two basic approaches to dealing with the domestic implementation of international conventions. In some instances, the government will develop specific legislation to ensure the domestic application of a particular international instrument. This is the case in relation to the Rome Statute of the International Criminal Court,[17] implemented in Canada through the Crimes Against Humanity and War Crimes Act;[18] the United Nations Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction,[19] implemented through the Anti-Personnel Mines Convention Implementation Act;[20] and the Geneva Conventions for the Protection of War Victims, implemented by the Geneva Conventions Act.[21]

Another approach is to avoid the development of specific enabling legislation, and to rely on existing domestic laws that are presumed to already respond to the concerns set out in the international treaty. When applying this approach, government officials conduct a review and analysis of existing law before ratifying the treaty to determine whether any amendment or new law is required to comply with the treaty obligations.[22] The federal government has adopted a policy of consulting with provinces and territories before signing and ratifying treaties on matters within non-federal jurisdiction in order to deal with these complexities. In the case of human rights treaties, this practice was formalized in an agreement reached at a 1975 meeting of federal and provincial ministers responsible for human rights that included the establishment of the Continuing Committee of Officials on Human Rights.[23] As stated by Irit Weiser, former Director of the Human Rights Law Section at the Department of Justice, during her appearance before this Committee in 2001:

As a prelude to ratification, the officials of the Department of Justice consult with colleagues in other federal departments; other agencies; the provinces and territories through the vehicle of [the] continuing committee; and with Aboriginal groups and other non-governmental groups. This consultation determines several things. It decides whether existing domestic laws and policies already conform to the treaty obligations. It determines if there are inconsistencies and if there are it decides whether new legislation and policies should be adopted or whether existing legislation and policies should be amended. And finally, it determines whether it is appropriate to maintain the domestic position even though it is inconsistent with the treaty provision and enter a reservation or a statement of understanding.[24]

John Holmes of the Department of Foreign Affairs told us in 2001 that,

we do not ratify until all jurisdictions indicate they support ratification and are in compliance with the obligations contained therein… We would await the results of provincial action or indication. We would wait to see that they were in compliance with the instrument before we moved to ratification.[25]

Federal government policy in this regard is set out in the Core document forming part of the reports of States Parties: Canada,[26] which forms part of Canada’s periodic reports under international human rights treaties to the United Nations:

Some human rights matters fall under federal jurisdiction, others under provincial and territorial jurisdiction. Therefore, human rights treaties are implemented by legislative and administrative measures adopted by all jurisdictions in Canada. It is not the practice in any jurisdiction in Canada for one single piece of legislation to be enacted incorporating a particular international human rights convention into domestic law (except, in some cases, regarding treaties dealing with specific human rights issues, such as the 1949 Geneva Conventions for the protection of war victims). Rather, many laws and policies, adopted by federal, provincial and territorial governments, assist in the implementation of Canada’s international human rights obligations.[27]

Thus, international human rights treaties are rarely incorporated directly into Canadian law, but are indirectly implemented by ensuring that pre-existing legislation is in conformity with the obligations accepted in a particular convention. The argument is that because the federal government worked to ensure that Canada fulfils its obligations indirectly through the conformity of pre-existing legislation with the Convention, it does not have to directly incorporate the Convention by means of enabling or any other more explicit form of legislation. However, the government controls this verification process. Canada’s approach to compliance is based on the government’s opinion of its own conformity with the international instrument. The Committee learned that the federal government’s unwillingness to directly incorporate human rights treaties is a key concern among a wide variety of witnesses.

Our Committee explored the concept of compliance and found that the term means the action or fact of being disposed to obey rules, or “meeting or in accordance with rules or standards.”[28] “Compliance can be said to occur when the actual behavior of a given subject conforms to prescribed behavior…”[29] Witnesses appearing before the

Committee expressed uncertainty as to whether Canada’s pre-existing legislation/policy-oriented approach to international human rights treaties can truly be termed explicit compliance and urged the Committee to find ways to expressly implement the terms of the Convention. In particular, Jeffery Wilson expressed his frustration with the government’s approach:

[Do not] delude yourself that this convention has some meaning. I make the point that it is not ratified into the Canadian law and so it has no binding nature and is more likely to be interpreted. It is of moral persuasion only.[30]

The uncertainties noted by Jeffery Wilson were present in the testimony of federal ministers before the Committee. Former Justice Minister Irwin Cotler asserted that Canada is in full compliance with the Convention because of the federal government’s consultation process and policy approach to implementation:

[A]s Minister of Justice, in that regard, one of my duties is to ensure that our legislation is in compliance with the Charter of Rights and Freedoms, and our international human rights obligations, including the children’s rights convention…

[Since ratification], we have continued to review all proposed legislative and policy initiatives that have a direct impact upon children to ensure compliance with the Charter, the [Convention] and other international human rights obligations. In so doing, we consider children’s rights from a contextual perspective because if we are to truly promote a child’s best interests, it is necessary to consider all of their rights together.[31]

Former Health Minister Ujjal Dosanjh gave a more cautious response to the question of whether Canada is effectively implementing the Convention:

[W]hen nations enter into international obligations and international conventions, one assumes, and I do as well, that we look upon those as obligations... Whether we are able in reality to live up to the obligations that we have signed on to is another question.[32]

Witnesses emphasized that the important question arising from the debate is: despite federal government assurances that it has reviewed existing laws and that Canada is in compliance with a Convention, if no legislation directly incorporates the terms of the Convention, what recourse is available to a child, adult, or institution that does not believe that Canada’s laws are in compliance with its international human rights commitments? At the present time, no body or government other than the relevant UN human rights treaty body has a mandate to respond to such concerns.[33]

Witnesses expressed concern that the government provides no clear message and little accountability. The only time the federal government is ever obligated to explain precisely how Canada is in compliance with a convention is every few years, in its report to the relevant UN Committee. Maxwell Yalden expressed his frustration with the Canadian approach: “I do not believe that we can hide behind this non-incorporation doctrine.”[34]

Former Minister Cotler’s testimony before the Committee outlines the ambiguity of this situation:

I would conclude by saying that, first, it is a rights-based international treaty and that, second, we seek to have our legislation conform to that rights-based international treaty. We do not have the expressed obligation with regard to the international treaties as we do, for example, with respect to the obligatoriness in the manner of the Canadian Charter of Rights and Freedoms, but there is a presumption of conformity with respect to international law. We seek, even without that notion of obligatoriness, to ensure that our legislation does in fact comport with our international obligations, having regard to the implementing issue where you may have mixed jurisdictional approaches, federal, provincial and the like.[35]

The Committee notes that Canada’s federal nature produces unique challenges for efficient and effective application of human rights conventions. Because many conventions span so many issues falling within different jurisdictions set out in the Constitution, and because of the sheer complexity of coordinating 13 jurisdictions, the federal government frequently faces situations in which federal-provincial-territorial cooperation is slow. As stated by the Honourable Ujjal Dosanjh, “Having come from the provincial government to the federal government, I can tell you that a lack of coordination exists at all levels of government and remains a serious issue.”[36]

It is important to note that the federal government’s treaty-making and ratification powers do not give Parliament exclusive jurisdiction to adopt the legislation necessary to implement Canada’s international legal obligations. Implementation of international treaties respects the jurisdictional boundaries laid out in the Constitution Act, 1867. As stated by the Privy Council in the seminal 1937 Labour Conventions Case, the federal government’s need to implement international treaty commitments cannot be relied on as a basis for federal encroachment into areas of provincial jurisdiction.[37]

As a result, implementation of international treaties where provincial laws and policies are affected is the responsibility of the federal, provincial and territorial governments. With reference to the Convention on the Rights of the Child, Wayne MacKay of Dalhousie University stated that,

[t]he federal government signed the Convention on the Rights of the Child that makes Canada as a nation state responsible for the implementation of that covenant. However, under our constitutional system the provinces and territories are responsible for the implementation of the covenant.

As the Labour Conventions case indicates, the federal government cannot enforce implementation.[38]

Government witnesses noted that this need for provincial legislation and cooperation to ensure full compliance with Canada’s international obligations has occasionally proven difficult in the past. Canada’s inability to ratify the International Labour Organization’s Convention No. 138 Concerning Minimum Age for Admission to Employment[39] demonstrates this point. Each province has its own minimum age for labour, as is permitted by its primary jurisdiction over labour issues according to section 92(13) of the Constitution. As a result, while Canada remains broadly respectful of the principles enumerated in Convention No. 138, some provinces do allow employment for children below the minimum age specified in the Convention. Canada has come under considerable criticism for these discrepancies and the federal government’s inability to ratify the Convention.[40]

Yet, Canada has an obligation to make best efforts to implement international treaties domestically, no matter what jurisdictional hurdles are entrenched in the Constitution. Peter Leuprecht of the Université du Québec à Montréal and Maxwell Yalden emphasized to our Committee that even when consultations and cooperation among the various jurisdictions prove difficult, once Canada has ratified an international treaty, lack of federal jurisdiction is not a valid excuse for failing to live up to the nation’s international obligations. This position is clear in international law, as stated in the Vienna Convention on the Law of Treaties:

Art. 26 Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Art. 27 A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

This presumption of good faith means that states must intend the treaties they ratify to be effective – notably, through implementation. Signature is not a mere formality but entails real responsibilities to fulfil a state’s international obligations to its utmost capacity.[41] The failure of any State Party to furnish adequate means of enforcement constitutes a violation of the treaty. This point was emphasized in Ariel Hollis Waldman v. Canada,[42] a case in which the UN Human Rights Committee criticized the federal government for violating the equality provision of the International Covenant on Civil and Political Rights through Ontario’s funding of a separate Catholic school system – despite the fact that this preferential treatment is entrenched in section 93 of the Constitution Act, 1867.[43]

D. ENFORCEMENT MECHANISMS

As suggested earlier in this chapter, enforcement mechanisms are an important part of the implementation process when discussing compliance with international law. While international trade treaties are traditionally bolstered by the presence of strong enforcement mechanisms that regulate trade disputes between nations, it is only recently that the international human rights sphere has begun to use more specific mechanisms to ensure that there are consequences for nations that fail to adhere to their obligations.

A clear example of such a mechanism is the recently implemented International Criminal Court, which provides criminal sanctions for those perpetrating crimes against humanity and war crimes. More common are the UN treaty bodies, which inspect the actions of states with respect to a particular human rights treaty – for example, the Committee on the Rights of the Child. These treaty bodies examine country reports and issue Concluding Observations commenting on and criticizing a country’s level of compliance with a particular treaty, and providing recommendations for improvement. The treaty bodies fulfil an important monitoring role and their Concluding Observations carry significant political, moral and persuasive weight, although States Parties have no legal obligation to put these recommendations into effect.

In Canada, the Continuing Committee of Officials on Human Rights prepares Canada’s reports to the UN treaty bodies. Representatives from the Continuing Committee appeared before this Senate Committee in June 2001 and April 2005 to provide us with information as to the Continuing Committee’s role and mandate.

1. The Continuing Committee of Officials on Human Rights

The Continuing Committee is an organization formed within the Human Rights Program of the Department of Canadian Heritage as a permanent mechanism for coordination and collaboration with provinces and territories regarding the ratification and domestic implementation of international human rights instruments. It includes federal, provincial, and territorial representatives from every jurisdiction and meets twice a year as a forum for dialogue and exchange.

The Continuing Committee’s mandate does not give it any policy- or decision-making authority, although it can make recommendations to the ministers responsible on its views concerning the development of Canada’s positions on international human rights issues. In the past, the Continuing Committee has played an active role in the signing and ratification of international human rights treaties.[44]

According to Eileen Sarkar at the Department of Canadian Heritage:

Since 1975, this committee has enabled the federal, provincial and territorial governments to share their views on human rights issues and exchange information on implementation of human rights treaties...

The committee is also involved in preparing for Canada’s appearances before UN treaty bodies, and its members are more frequently participating as members of the Canadian delegation. The committee examines issues associated with each of the human rights treaties, and discusses specific UN recommendations in more depth, including sharing best practices.[45]

2. Adequacy of the Reporting and Follow-Up Process

Some of the primary frustrations expressed to our Committee – both during these hearings, and in preparation for Promises to Keep – emphasized the inadequacy of Canada’s reporting process and follow-up to the Concluding Observations issued by UN Committees. On a very practical level, our Committee heard that the Continuing Committee of Officials on Human Rights does not operate effectively and is not an efficient mechanism for ensuring coordination among jurisdictions or with the various treaty bodies in Geneva and New York. The Continuing Committee does not have an adequate mandate to fulfil these expectations – it is a consultation and coordination mechanism only.

Witnesses’ concerns go beyond the Continuing Committee’s mandate and extend to the democratic deficit and complexity of the entire reporting and follow-up process. Concerns emphasized the lack of transparency, low levels of ministerial or other significant political involvement, and lack of parliamentary or public input. It was pointed out that such issues lie at the heart of any functioning democracy.

a) Reporting to the UN Committee

In putting together the country report for UN Committees, each federal, provincial, and territorial jurisdiction prepares its own submission.[46] Reports from all jurisdictions are then consolidated by the Continuing Committee of Officials on Human Rights to create Canada’s final report to the UN Committee.

The process of consolidating lengthy reports from each jurisdiction can lead to unwieldy documents. In its latest Concluding Observations, the Committee on the Rights of the Child criticized the complexity and length of Canada’s reports:

the submission of a synthesis report based on both federal and provincial reports would have provided the Committee with a comparative analysis of the implementation of the Convention and a more coordinated and comprehensive picture of the valuable measures adopted by Canada to implement the Convention.[47]

The Continuing Committee’s compilation of the report is also a painstakingly slow process that can take up to three years. But Maxwell Yalden points out that Canada’s complex federal structure is not a valid excuse:

We have been rather slow sometimes in preparing the reports to the committees. From our point of view, that is inevitable because of our complex federal system. That does not cut much ice with an international body because Canada, not the individual provinces and territories, is party to the covenant… We cannot really use that as an excuse.[48]

He also refers to the need to create a more streamlined report:

our reports would be much more impressive and a much more effective description of and defence of our views if they were shorter and if there were better consultations between and among the provinces and federal government.

Each province does things differently. Some provinces list all the illegal grounds of violation of human rights, others do not. Some do partly and others do not. There is no consistency at all and that makes for a bad report.[49]

Concerns also emphasize the lack of real public or non-governmental input into development of the country report. This Committee’s first report, Promises to Keep, criticized the absence of parliamentary input into or scrutiny of the reporting process.[50] With respect to the Convention on the Rights of the Child, while Canada’s country report comprises solely federal, provincial, and territorial government contributions, NGO commentary has been given to the UN Committee in past years in a separate document prepared by the Canadian Coalition for the Rights of the Child.

It is important to note that the Office of the UN High Commissioner for Human Rights (OHCHR) has also recognized that its own demands are onerous and is currently considering how best to streamline the UN treaty bodies’ process. Every treaty body currently faces extreme backlogs in terms of receipt and examination of country reports.[51]

Maxwell Yalden and members of the Committee on the Rights of the Child emphasized that this entire process needs to be transformed, both in Canada and within the UN, in order to create a more comprehensive and coordinated reporting effort, with increased dialogue built into that new framework.

b) Concluding Observations of the UN Committee

The Geneva-based NGO Group for the Convention on the Rights of the Child and the UN Committee on the Rights of the Child also noted problems with Canada’s approach to receiving the UN Committee’s Concluding Observations. When a UN treaty body issues its Concluding Observations, the Continuing Committee’s role is to keep provincial and territorial governments apprised of any comments on the scope of the rights guaranteed by the convention. However, these consultations are held behind closed doors. Although the Concluding Observations are available on the UN and Canadian Heritage’s websites, little other effort is made to publicly disseminate UN Committees’ comments and criticisms or to ensure public debate or follow-up. Witnesses criticized the lack of transparency in this process, noting the absence of any role for Parliament in reception and dissemination of the Concluding Observations.

Witnesses expressed concern that few people in Canada are aware of these Committees’ Concluding Observations, in the context of children’s rights, commenting that these Observations often have significant impact within the children’s rights community for one year and are then forgotten.[52] The Committee on the Rights of the Child itself has also noticed a lack of follow-up in Canada because parliamentarians are not sufficiently informed of their nation’s obligations. Members comment that this is particularly so given that Concluding Observations tend to be “shelved” by the government.

Anne Bayefsky of York University, appearing before the Committee in

2001, commented on the lack of transparency both in the reporting process and in receipt of the Concluding Observations:

It is not an open process. There is no dialogue in general… it is basically not a consultative process, which I think is extremely unfortunate. There is no reason it could not be a more constructive and inclusive process as to what our report should say and where we should go from here. The answer is basically that no one sees [country reports] in advance at the moment.

They are submitted, but what happens to them afterwards? The committees make recommendations on the basis of those reports. What happens to those recommendations? If an NGO has been particularly active and is able to drag along certain media, the recommendations get media attention. For the most part they are completely ignored. There is no process here in Canada to take the report and the subsequent commentary, to review them together in an open fashion and put forward constructive approaches to responding to those criticisms. Those reports go nowhere, until the next time they are due.[53]

c) Our Committee’s Findings

On the basis of testimony from across Canada and abroad, our Committee has found that the current reporting and dissemination processes are too complex, leading to problems of coordination, compounded by the omission of important stakeholders. Lack of transparency is a significant criticism. The Continuing Committee appears to work behind a veil of secrecy. Few in government, let alone the public, know anything about its composition, actions or deliberations. Although consultations held in camera do facilitate free discussion, they do little to promote awareness of the specific conventions and the state of human rights in Canada.

In addition, although the Continuing Committee itself meets twice a year, there have been no intergovernmental meetings on human rights at the ministerial level in more than 15 years. In Promises to Keep, this Committee criticized the Continuing Committee’s inactivity in this respect. On 11 June 2001, Norman Moyer, Chair of the Continuing Committee, told our Committee that:

These hearings also come at a useful time for my committee. The Continuing Committee of Officials on Human Rights is in the process of reviewing its mandate and the way it operates. Therefore, any comments that you may have on the nature of the committee will be much appreciated.[54]

In testimony before the Committee in 2005, Eileen Sarkar of Canadian Heritage stated that “[y]our comments were taken into account, and I believe at the last meeting of the [Continuing] [C]ommittee there was some discussion of the possibility of proposing to ministers a ministerial-level meeting in 2006.”[55] Our Committee awaits information about any action taken in this respect.

Ultimately, the Committee’s comments made in Promises to Keep remain true:

The real issue and problem is not, however, that the Continuing Committee of Officials on Human Rights is not providing a public forum for domestic accountability and scrutiny of Canada’s implementation of its international human rights commitments. This is not its job. The real problem for Canada is that no other official body or institution of government is performing this function either.[56]

What is lacking is real political involvement in the process at a ministerial level. As well, there is no role for Parliament to provide input or to monitor events with respect to Canada’s human rights treaties. This democratic deficit – which is only increased by the lack of transparency inherent in the current system, in the absence of both awareness-raising and public input – leads the Committee to conclude that Canada’s current reporting process and follow-up mechanisms are wholly inadequate.

A. BRIEF HISTORY OF THE CONVENTION

As noted by Margaret Somerville of McGill University in her testimony before the Committee, the Convention on the Rights of the Child

expresses in a fairly succinct form the collected wisdom of millennia of human experience with regard to parents and children, and added to it is a late 20th century sensitivity to articulating human rights and how it should be if we could always achieve what we most want to achieve with respect to human rights.[57]

The creation of the Convention on the Rights of the Child was an ambitious and complex undertaking. Drafting took eleven years, from March 1978 to March 1989. Canada played an instrumental role in this process, facilitating communication between over 40 countries with varying religious, ideological, cultural and political traditions. Former Prime Minister Brian Mulroney was also significant to the adoption process, jointly initiating and co-chairing the World Summit on Children at the United Nations in 1990 to encourage ratification of the Convention and draft a ten-year plan of action for children.

Reinforced by such political will, the Convention was ultimately adopted by the UN General Assembly in November 1989, representing the first time that the needs and interests of children were “expressly formulated in terms of human rights.”[58] The instrument captured the imagination of world leaders and was embraced with overwhelming enthusiasm by the entire world community. It is currently the most widely subscribed-to international treaty in history, ratified by 193 nations.[59] Canada was able to ratify the Convention once all the provinces and territories signalled their support for the Convention by sending letters of support to the federal government – Canada signed the Convention on 28 May 1990 and ratified it on 13 December 1991.

B. THE CRITICAL IMPORTANCE OF FOCUSING ON CHILDREN’S RIGHTS

1. The Rights-Based Approach

[C]hildren should have rights as human beings not as “human becomings.”[60]

In attempting to highlight the necessity of addressing children’s rights, the Senate Committee is fully aware that the world may have grown weary of the phrase “our children are our future.” While the statement remains true, witnesses have emphasized that the government, Parliament, and civil society need to move beyond that cliché and recognize that children are citizens today. Only in understanding this can we begin to foster a true culture of rights and responsibility in our society. Clarifying the rights-based perspective and guaranteeing its application in the Canadian context is crucial to ensuring a fulfilled and meaningful maturation of rights.

The Committee heard from witnesses that the rights-based perspective – which is embedded in the Convention on the Rights of the Child and modern international human rights law – emphasizes the need to focus on children as individuals with their own set of rights. The idea is that children are not merely objects of concern to be protected, but are also to be recognized as persons in their own right. As such, they will also begin to understand their responsibilities in society. As stated by Justice Jean-Pierre Rosenczveig, President of the Board of Directors of the International Bureau for Children’s Rights, the Convention on the Rights of the Child

is deliberately oriented towards the 21^st century in its recognition of the child as a person endowed with a heart and feelings, possessing rights, and not just as a small, fragile being who has to be defended against others and against himself or herself.[61]

Viewing children’s rights within this framework means that children are afforded protection beyond the level of simple survival or basic needs, thus facilitating the creation of a sustainable environment in which such rights can be protected in the longer term.[62] The rights-based approach “means describing situations not in terms of human needs, or areas of development, but in terms of the obligation to respond to the rights of individuals. This empowers people to demand justice as a right, not as a charity.”[63] As stated by the UN Committee on the Rights of the Child, “[i]mplementation of the human rights of children must not be seen as a charitable process, bestowing favours on children.”[64] Charity does not allow individuals to achieve their full potential because it tends to treat people as objects, rather than as active participants in the development of their well-being.[65]

In essence, the three primary features of the rights-based approach are as follows:[66]

· All rights are equal and universal

· All people, including children, are the subject of their own rights and should be participants in development, rather than objects of charity

· An obligation is placed on states to work towards ensuring that all rights are being met

This approach demands a holistic form of programming to ensure widespread protection, while paying particular attention to the most vulnerable and marginalized in our society in order to ensure the full and equal development of individual rights.[67] The framework also

places a moral and legal obligation on states to make sure that everyone’s rights are being respected and to determine and remedy those cases where this is not happening. By ratifying human rights treaties, states accept the responsibility of implementing the rights enshrined therein – states become legally accountable… A rights-based approach provides standards that can be measured through monitoring in order to ensure accountability of States parties and other stakeholders to children’s rights.[68]

According to Kathy Vandergrift, formerly of World Vision Canada and now Chair of the Canadian Coalition for the Rights of Children, the rights-based approach:

adds real value because it puts the whole child in the centre, and then looks at all components and all factors that can impact that child’s situation. It is not just addressing one need – food, water or some of those things – but it looks at the whole child and treats that child as an actor in the situation, not just as a passive recipient.[69]

The rights-based approach represents a move from a more reactive case-based focus to one which is more proactive and systemic, centred on prevention.[70] One example of how this approach operates is as follows:

[I]f 100 children need to be immunized, the needs- or problem-based approach would say that after 70 children are immunized we have a great success rate of 70%. The rights-based approach recognizes that there are still 30 children that need immunization. The rights-based approach reaches out to even the most marginalized children and makes a difference in all children’s lives.[71]

Advocates of this approach indicate that its aim is to build a culture of respect at home and throughout the world, with a sense of accountability to children, not merely for them. Kay Tisdall, Social Policy Professor at the University of Edinburgh, noted that such accountability “has to go all the way down.”[72] Only through these means can children establish a sense of accountability themselves.

2. Why Children?

The rights-based approach is of particular importance in the discussion of children’s rights because of children’s often intense vulnerability, the frequent competition between children’s rights and those of adults, and the resulting ease with which a more paternalistic and needs-based approach can be adopted.

Canadian society clearly recognizes the importance of children. Former Senator Landon Pearson’s introductory message to Canada’s 2004 Plan of Action, A Canada Fit for Children, highlights why this Committee found it so important to conduct our study on children’s rights:

The 21st Century will belong to our children and our children’s children. It is their dreams and aspirations, shaped by the circumstances into which they are born and which surround them as they grow up, that will give the Century its final definition. Those who are under eighteen today constitute more than a third of the world’s population and are already profoundly affecting our lives by their decisions and actions. For their sake as well as our own, we must do everything possible to reduce the suffering that weighs them down, open up their opportunities for success and ensure them a culture of respect. This is what the young people meant when they spoke to the General Assembly of the United Nations at the Special Session on Children in May 2002. “We want a world fit for children,” they said, “because a world fit for us is a world fit for everyone.”[73]

Within this context, many witnesses before the Committee emphasized the particular vulnerability of children. Children are the only group in Canada – left out on the basis of age alone – with no voice, no vote, and little access to powerful lobby groups, the media, or legal services. The Committee on the Rights of the Child and the UNICEF Innocenti Research Centre point out that children’s voices rarely inform government decisions, yet they are one of the groups most affected by government action or inaction. Children are not merely underrepresented; they are almost not represented at all.[74] As stated by Al Aynsley-Green, Children’s Commissioner for England, and also emphasized by Kay Tisdall, we need to recognize that children are the “citizens of today, not of tomorrow,”[75] and ensure that our policies reflect this reality.

In doing so, our policies and laws should strive to uphold dignity for all children. Dignity and respect are fundamental concepts underlying the Convention on the Rights of the Child and this Committee’s study. As stated by Fred Milowsky, Deputy Child and Youth Officer of British Columbia, the Convention “is a vision that asserts the fundamental dignity of children… If you focus on dignity, then it is a natural flow to rights, because it becomes an entitlement.”[76]

And yet it is important to note that such dignity and rights are founded in an even larger context. Mr. Milowsky emphasized that “the convention’s vision properly puts children at the centre, in the context of their family, their community, and their culture.”[77] The Convention on the Rights of the Child is a holistic instrument that explicitly recognizes that children develop within different contexts – the family, the community, and school. As noted by Kathy Vandergrift, “[o]ne of the most beautiful things about the Convention on the Rights of the Child is that multilayered aspect. It is a child as an actor but not as an individual alone against the world. It is a child within a network of supportive environments that progressively develop the child’s capabilities.”[78] This concept of context is an important one when it comes to discussions of conflicting rights and the role of families. The Convention strives to uphold the dignity of children within the context of their community, while also recognizing the rights of those that surround children.

In fact, witnesses emphasized to the Committee that the protection of children’s rights is beneficial not just for children, but for society as a whole. Kathy Vandergrift went on to state that “[t]he more we understand the potential of children, the more we can shift that discussion away from needing to shape them if we understand that they also help to shape our communities.”[79] Martha Mackinnon of Justice for Children and Youth put the impact of ensuring children’s rights bluntly:

Sadly, as a Canadian society, we have not moved far enough towards thinking that, if we give someone rights, that does not mean that we have taken them away from us… That is not my perception of how human rights work. My perception is the more human rights all of us have, the better off we all are collectively. Therefore, the notion that to give a kid something does not hurt someone else is a message that we are not selling [effectively]. It is a message that I am a stronger, better parent. I am a stronger, better teacher. I am a stronger, better employer if every kid that I work with knows that he is just as much of a human being as I am, and that my rights are enhanced when every member of my society has them as well.[80]

Pushing this concept further, Katherine Covell, Professor at the University College of Cape Breton Children’s Rights Centre, highlighted “the incredible importance of respecting children’s rights to the healthy development of society.”[81]

These comments provide the underpinning for the Committee’s entire study. The protection of children’s rights can have a profound effect not only on the child as an individual, but also on society as a whole. Suzanne Williams of the International Institute for Child Rights and Development reported a striking example of how one young person’s realization of her rights has created a widening circle of positive change:

“Child rights saved my life.” These words were shared by a young Aboriginal Canadian woman at a session hosted by the International Institute for Child Rights and Development (IICRD) in March 2004. Just 6 years earlier this young person had attended a conference in Canada for young people who were sexually exploited through the sex trade. She learned for the first time then that she had rights: she mattered. From her perspective these rights made all the difference and gave her a reason to live. Today this young woman has exited the sex trade, attends University and helps other young people still exploited in the sex trade to learn about their rights and turn their lives around. This is just one example of the power of child rights. The challenge for Canada: to ensure that child rights are respected and implemented on a broad scale for the benefit of all children.[82]

Ultimately, ensuring the promotion of and respect for children’s rights strengthens recognition of children as individuals – full human beings capable of making meaningful choices with the right guidance. By enhancing the dignity of a child, we also enhance their acceptance of their role as a citizen with both rights and responsibilities. Kathy Vandergrift told our Committee that “[r]ights and responsibilities are the two sides of the coin; you cannot have one without the other.”[83] The idea is that by treating children as persons with responsibilities we can create future generations of responsible adults. Imbuing all levels of society with a culture of responsibility can only serve to improve the environment around us. These ideas were effectively given life by an example provided by Stephen Wallace at the Canadian International Development Agency:

Girls and boys under the age of 18 may not have a vote; they may not be given space to voice their concerns either. They may be among the most abused and exploited members of their societies. Yet, as we see in many developing countries, children are already running their households and contributing to their economy. They look after younger children and are even having children themselves. From the development perspective, children have the power to perpetuate cycles of poverty and violence. With our support, however, they also have the power to break those cycles and build a better future.[84]

Kearney Healy, a lawyer who appeared before the Committee, echoed this view:

[Y]ou have to develop a policy which meets the needs of young people and allows them to develop into independent, successful adults; that is absolutely essential.

I would urge you to consider that children have a right to grow into adults who are successful human beings, pro-social, talented, reliable people who can take great pride in their accomplishments. I suggest that is implicit in your idea of a rights-based approach for young people. When that approach is taken, the transformation is amazing.[85]

C. THE CONVENTION ON THE RIGHTS OF THE CHILD - AN OVERVIEW

1. The Convention

In essence, the Convention establishes common broad standards with respect to children’s rights. Its provisions reflect many of the same principles expressed in other international human rights instruments, ensuring that such rights and responsibilities apply specifically to children (under the age of 18) by taking into account their particular needs and situations. The Convention outlines broad principles and specific rights, also ensuring that organizations monitoring the protection of children’s rights can take the “different cultural, social, economic and political realities”[86] into account in their assessment.

The Convention contains three general principles to guide interpretation and implementation of the more specific articles protecting children’s rights. Article 2 highlights the principle of non-discrimination:

Art. 2(1) States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

(2) States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Article 3 establishes the principle of the best interests of the child, which must be a primary consideration in all state decision-making affecting children:

Art. 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

(3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Finally, article 12 of the Convention emphasizes the right of the child to be heard in all matters affecting him or her. Those views should be given due weight “in accordance with the age and maturity of the child.”

Art. 12(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This recognition of the need to hear from children is a defining element in the protection of children’s rights, clarifying how all governments and organizations should approach any initiatives with respect to children.

In addition to these general principles, the Convention also contains numerous specific rights surrounding many aspects of children’s lives. These include the right:

· To a name and nationality from birth

· Not to be separated from their parents, except by competent authorities for their well-being

· To family reunification

· To protection from physical or mental harm, including sexual abuse and other forms of exploitation

· To the highest attainable standard of health

· Of disabled children to special treatment, education and care

· To education

· To play

Along with these rights, states have a number of enumerated obligations, such as the obligation:

· To provide parents with appropriate assistance and develop child-care policies

· To protect children from the illegal use of drugs and involvement in drug production or trafficking

· Not to impose capital punishment or life imprisonment for crimes committed before the age of 18

· To treat children involved in infringements of the penal law in a way that promotes their sense of dignity and worth and aims at reintegrating them into society

· Not to involve any child under 15 in hostilities

· To allow children of minority and indigenous populations to freely enjoy their own culture, religion and language

· To provide appropriate treatment or training for recovery and rehabilitation to children who have suffered mistreatment, neglect or exploitation

· To make the rights set out in the Convention widely known to both adults and children

2. The Optional Protocols

The Convention is accompanied by two Optional Protocols that deal with specific issues contained in the primary document. The first, on the Sale of Children, Child Prostitution and Child Pornography,[87] came into force on 18 January 2002. It extends the protections guaranteed to children by Convention articles 11 (on the illicit transfer and non-return of children abroad), 21 (adoption), and 32 to 36 (economic exploitation and trafficking in children). The Protocol emerged out of concern about the sexual exploitation of children and recognizes the underlying conditions that make children vulnerable to such exploitation, including poverty and a lack of education. As of December 2006, there were 113 States Parties to this Optional Protocol. Canada ratified the document on 14 September 2005.

The second Optional Protocol, on the Involvement of Children in Armed Conflicts,[88] came into force on 12 February 2002. It relates to article 38 of the Convention, which prohibits children under the age of 15 from being recruited into the armed forces. States Parties to this Protocol must declare the age at which they will permit voluntary recruitment into their armed forces and guarantee that no one under the age of 18 shall engage in hostilities. As of December 2006, there were 110 States Parties to this Optional Protocol. Canada ratified the document on 7 July 2000.

It is important to note that a state may be a party to the Convention even if it does not ratify the Optional Protocols. The reverse is also true. For example, the United States, which has not ratified the Convention on the Rights of the Child, has ratified both Protocols.

3. The Committee on the Rights of the Child

Article 43 of the Convention provides for the establishment of a UN Committee on the Rights of the Child to monitor States Parties’ implementation of the Convention. The Committee, created in 1991, is based in Geneva and meets three times a year, for four weeks each session. It comprises 18 independent experts (an increase from the original 10), each of whom represents a State Party to the Convention and is elected for a four-year term. Canada is currently represented by David Brent Parfitt.

States Parties are required to submit an implementation report to the Committee within two years of ratifying the Convention, and every five years thereafter. Practice has also grown such that the NGO community often submits an alternate report as well. After studying each report, the Committee adopts “Concluding Observations” that comment on the state’s progress in implementing the Convention and recommend improvements in areas in which the state is falling behind. Although the UN Committee has no enforcement mechanism, the Concluding Observations do have political, moral and persuasive authority. The UN Committee encourages all States Parties to make their reporting process transparent and to publish their reports, along with the Concluding Observations, in order to stimulate public debate on the Convention.

The Committee on the Rights of the Child monitors compliance not only with the Convention but also with the Optional Protocols. States Parties’ reports on their progress in implementing the Convention must further address their implementation of the Protocols. In 2004, Canada agreed to report on its implementation of its National Action Plan, A Canada Fit for Children,[89] as well.

The UN Committee also holds general discussions on issues related to children’s rights, such as the economic exploitation of children, the rights of the child in the family context, the rights of the girl child, and youth criminal justice. Such thematic discussions are held approximately once a year and may lead to requests for studies; they may also serve as a basis for work on interpreting the articles of the Convention. The Committee does not, however, hear individual complaints.

D. THE GAP BETWEEN RIGHTS RHETORIC AND REALITY

And yet, despite the importance of children’s rights and the fact that the rights-based approach is engrained in the Convention and in other international human rights instruments, witnesses appearing before our Committee emphasized that many in Canada and elsewhere continue to resist its full implementation. The concept of “rights” is often seen as dangerous or threatening to the rights of the more powerful.[90] Margaret Somerville emphasized that in practice, children’s rights often lose when they come into conflict with the rights of adults:

Our societies are focused on intense individualism and on our rights; and since we are adults, children get left out… The Charter does apply to children; it is just that, in practice, they cannot claim their Charter rights. Everyone has rights under the Charter, and then there is the exercise of those rights. Children are not able to exercise their own rights. Furthermore, where they conflict with adults, the adults win.[91]

Others are simply unaware of the Convention or its implications. While our Committee was dismayed that so few witnesses were aware of the Convention and the rights enshrined in it, the UNICEF Innocenti Research Centre notes that even when individuals are aware of the Convention

the radical nature of the [Convention], recognizing children explicitly as subjects of rights, is neither fully accepted or properly understood by many governments. There is particular neglect of the principle of promoting the best interests of children through respect for their rights and of the obligation to listen and act on the views of children as an essential step to the realization of their rights.[92]

Witnesses were critical of the perceived gap between the rhetoric and the realities of children’s rights in Canada. They expressed grave concern that there is often a disconnect between intent and concrete compliance with the Convention on the Rights of the Child in Canada. While the government attempts to conform to the rights-based approach in theory, many witnesses argued that it is hesitant to be bound by it in practice.

Children’s rights have undergone significant evolution in the history of Canada. Children are no longer considered a form of chattel or possession, nor are they any longer simply part of a family unit.[93] Children today are persons in their own right.[94] Yet, while international human rights mechanisms are strengthening in the modern world, Canada must incorporate them into our national laws before they can be of any force and effect in this country. Numerous witnesses appearing before the Committee emphasized that Canada needs to ensure that it rises to meet its obligations. Lawyer Jeffery Wilson expressed deep concern that the Convention on the Rights of the Child is legally meaningless in this country – ineffectively implemented and thus of little assistance to the protection of children’s rights:

When I try to explain the convention to children who are 15, 16 and 17, eventually one character… asks, “What good is the convention?” That is a valid point… [F]or Canada to have, in some ways, a convention that does not have a binding, legal effect to be distinguished from other international conventions that it has ratified, is almost regressive… The convention appears to be good in the eyes of the courts but it is not effective because it is not binding. Its effect is the same as when I say there is a convention that states you cannot hit a woman but it has no binding effect. That would be a strange document.[95]

As was noted in Who’s in Charge Here?, Canada is regarded as a leader in the field of human rights. Since World War II , Canada has played a significant role in the development and promotion of new human rights initiatives, such as the International Criminal Court, and it is now party to over 30 international human rights instruments. And yet, many witnesses pointed out that today Canada’s reputation is better than its actual actions. As stated by Maxwell Yalden, former member of the UN Human Rights Committee:

I am of the opinion that Canada has always played an important role in the international community as regards human rights, but I have to admit that I am getting more and more impatient with this very rich community of ours which has a tendency to teach lessons to others without looking at its own performance.[96]

Billie Schibler, Children’s Advocate for the Province of Manitoba, also emphasized the importance of ensuring children’s rights at home before looking abroad:

In Canada, we as a country are very clearly failing to protect our most vulnerable, failing to preserve our most precious and presumably cherished resource, our children. We are an advanced country. We have natural resources and we have brilliant leaders, but unless we can find success in ensuring a brighter future for our children, unless we can provide them with hope, unless we can start listening and hear what they are saying, we as a province are lost, we as a country have no future.[97]

Renée Vaugeois, of the John Humphrey Centre for Peace and Human Rights, noted that “Often we share the Convention on the Rights of the Child with… youth when we engage with them. The last group we talked with said, ‘This is just a bunch of words. These rights get broken all the time.’”[98]

Our Committee notes that given the realities of children’s rights within our borders, Canada will not be able to continue to say it is an international leader. Canada cannot insist that other countries respect the rights of children if it is failing its own children at home.[99]

These were the concerns that underscored the Committee’s study and this report. The Committee concluded that its study of this issue must strive to further the debate on children’s rights, thus raising awareness about these rights, and creating an impetus for government action. Our study must address the concerns of one of the most vulnerable, yet promising, segments of Canadian society in order to ensure that their voices are heard. Through this report, the Committee aims to highlight these concerns in order to bring Canada into compliance with the Convention on the Rights of the Child.

As stated by the former Minister of Health, Ujjal Dosanjh, “we cannot rest on our laurels.”[100] Martha Mackinnon told us that Canada cannot “lose the powerful moral high ground”[101] with which we started:

It is important to note that Canada did not just sign and ratify the UN convention. It was a proponent; it was a leader; it urged other countries to sign; it helped in the drafting; and it worked to make this the international treaty and standard for children’s human rights. If Canada is a proponent, then it is also critical that we be a leader in the world in incorporating the convention into domestic law…

This is something on the international stage to which Canada is committed. In my submission, it would be very sad if the signing of an international treaty became the high-water mark. If you do not move to implementation, then what Canada has said is: Here is what we think the international standard is; other countries should follow it, we do not need to.[102]

Government and academic witnesses, as well as those representing children’s rights advocacy organizations across Canada, testified before the Committee with respect to Canada’s implementation of the Convention on the Rights of the Child. Their evidence and recommendations were supplemented by information obtained from various UN and international organizations in Geneva, including the Committee on the Rights of the Child; as well as examples of how the Convention operates in like-minded nations, such as Sweden, Norway, and the United Kingdom. Finally, the Committee heard from young people across Canada and abroad as to their perspectives on the Convention and its impact on their lives.

The Committee concluded that implementation is key to making the Convention work in Canada. One of the primary obstacles to the successful protection of children’s rights in this country is the lack of effective implementation mechanisms.

A. APPLICATION AND IMPLEMENTATION

Art. 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention…

1. No Enabling Legislation

Government witnesses told our Committee that after Canada ratified the Convention on the Rights of the Child on 13 December 1991, the federal government did not adopt specific or global enabling legislation to introduce the Convention into domestic law. Instead, in line with its usual approach to international human rights treaties, the government entered into a consultation process prior to ratification, reviewing and analyzing existing laws across Canada to determine whether any new laws or amendments were needed to ensure conformity with the treaty. The former Minister of Justice described the government’s traditional approach to the Convention on the Rights of the Child:

Given, therefore, that Canada is a federal state and that jurisdictions on many issues relating to children fall to the provinces or are shared with them, the federal government respects the importance of working with the provinces and territories, both before the Canadian ratification of an international instrument as well as afterwards, to ensure that Canada meets our international obligations.[103]

After some adjustment following these consultations, the government appeared satisfied that Canadian law was in conformity with the Convention on the Rights of the Child and that the Convention could be deemed to be implemented by means of the Canadian Charter of Rights and Freedoms,[104] federal and provincial human rights legislation, and other federal and provincial legislation pertaining to matters addressed in the Convention.[105]

The government faced jurisdictional obstacles in arriving at this conclusion. Children’s rights and issues cut across all jurisdictions – from child protection and family law, which are mostly under provincial jurisdiction; to immigration and criminal law, which are under federal jurisdiction. While all provinces may have legislation that conforms to the principles outlined in the Convention, they often approach those standards through different frameworks. The vast array of laws in each province and territory, as well as the differing interpretations of or approaches to them, add to the task of those determining whether Canada’s laws are in compliance with its international obligations. Canada’s position with respect to the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography provides an example of the coordination hurdles inherent in the ratification process. Although the federal government ratified that Protocol in September 2005, jurisdictional issues ensured that nearly four years elapsed between signature and ratification.

Nevertheless, the federal government has argued in the past that even though Canada’s laws do not always match the explicit wording of the Convention, this consultation process ended in an assurance that the standards contained in Canada’s laws are now either equal to or even higher than those set out in the Convention itself.

This policy-based approach to Canada’s international obligations led numerous witnesses to argue that Canada is not in full compliance with the Convention. They asked our Committee whether pointing to the Charter and various human rights and other legislation is sufficient to ensure compliance with the Convention, given the specific nature of the rights pertaining to children laid out within it. Without ensuring that the explicit language used in the Convention is replicated in Canada’s laws, how can we be sure that children’s rights are actually enforceable, or that Canada is in full compliance with the Convention?

2. Statutory and Judicial Interpretation

Despite the lack of specific enabling legislation in Canada with respect to the Convention, witnesses pointed out that, in addition to its application through various human rights and other legislation, the Convention has another means of influencing Canadian law. International law, including the Convention on the Rights of the Child, can be used by the courts and other decision-making bodies as an aid to interpreting legislation affecting children’s rights in Canada. There is a common-law interpretive presumption that any legislation adopted in Canada is consistent with its international legal obligations, even if not explicitly implemented in domestic law – the presumption is that Parliament intended to legislate in a manner consistent with these obligations.[106] It must be kept in mind, however, that this perspective is only occasionally argued or used in the courts.

The Supreme Court of Canada’s decision in Baker v. Canada (Minister of

Citizenship and Immigration)[107] is one of the leading decisions in Canada on the influence of international law on domestic obligations where the international instrument in question has not been explicitly implemented in Canadian law. With reference to the Convention on the Rights of the Child, the court cited a passage from Driedger on the Construction of Statutes:

[The] legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[108]

The majority of the court in Baker ruled that although Canada had not incorporated the Convention on the Rights of the Child into domestic law, the Convention’s guiding principle making the best interests of the child a primary consideration in decision-making concerning children should have played a role in the government’s decision-making process in this particular instance. The court cited the important role of international human rights law as a “critical influence on the interpretation of the scope of the rights included in the Charter.”[109] As noted in Reference re Public Service Employee Relations Act (Alberta),[110] international law is a relevant and persuasive authority with respect to the interpretation and application of the Charter. Testimony before the Committee from outside Canada could just as easily apply at home – Scotland’s Commissioner for Children and Young People, Kathleen Marshall, observed the “creeping authority”[111] of the Convention in domestic law. She noted that in Scotland, the Convention is achieving a higher domestic profile through “the back door.”[112]

However, witnesses emphasized that although international human rights norms have a role to play domestically, it is still a secondary one. International law is a consideration in the judicial decision-making process, but ultimately, the values reflected in international instruments that are not implemented in domestic law only help to inform the contextual approach to statutory interpretation.[113] While international law may be used to determine matters related to public policy, its effect on domestic law is restricted to “elucidation of Parliamentary intent.”[114] Even in Baker, the Supreme Court emphasized the persuasive, rather than the obligatory, force of the Convention.[115] As stated by Jean-François Noël,

[d]espite a certain degree of openness by the Supreme Court of Canada to relying on the Convention on the Rights of the Child for interpretation purposes, it nevertheless remains that, as long as the Convention on the Rights of the Child has not been incorporated in domestic law, it will not have force of law, and compliance with its principles will be subject to the laws in effect in Canada.[116]

Because the Convention on the Rights of the Child has not been incorporated into Canadian law, it cannot be used as the direct basis for any claim. Irit Weiser clarified this point in her testimony before the Committee in 2001:

If someone felt that Canada was violating a particular article of that convention, they could not start an action in Canadian courts based on that particular article of the convention. They could try to find something in our Charter or some other piece of legislation and argue that the convention affects the interpretation of the domestic law or of our Charter and amounts to a violation, but they cannot start their court action based on the treaty alone.[117]

B. RESERVATIONS

Witnesses in both Canada and Geneva provided the Committee with information about Canada’s reservations and status with respect to the Optional Protocols to the Convention on the Rights of the Child. Canada filed two reservations and a statement of understanding with respect to the Convention’s applicability in Canada as a result of the consultation process that took place prior to ratification.

1. Article 21 – Customary Care

The first of these reservations and the statement of understanding concern

article 21 of the Convention, which refers to domestic and inter-country adoption.

Reservations

(i) Article 21
With a view to ensuring full respect for the purposes and intent of article 20(3) and article 30 of the Convention, the Government of Canada reserves the right not to apply the provisions of article 21 to the extent that they may be inconsistent with customary forms of care among aboriginal peoples in Canada.

Statement of understanding

Article 30
It is the understanding of the Government of Canada that, in matters relating to aboriginal peoples of Canada, the fulfilment of its responsibilities under article 4 of the Convention must take into account the provisions of article 30. In particular, in assessing what measures are appropriate to implement the rights recognized in the Convention for aboriginal children, due regard must be paid to not denying their right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion and to use their own language.

John Holmes of the Department of Foreign Affairs told the Committee in 2001 that the government adopted this approach to article 21 in order to ensure that recognition of customary adoption among Aboriginal peoples in Canada was not precluded by the Convention requirement that adoptions be authorized by competent authorities, in accordance with applicable laws and procedures.[118]

2. Article 37(c) – Detention of Young Offenders in Separate Facilities

The second reservation concerns article 37(c), which deals with the youth criminal justice system, requiring States Parties to detain young offenders in separate facilities from adult offenders.

Reservations

(ii) Article 37(c)
The Government of Canada accepts the general principles of article 37(c) of the Convention, but reserves the right not to detain children separately from adults where this is not appropriate or feasible.

Witnesses told us that the government adopted this reservation for a number of reasons. The first was to provide some leeway for remote northern communities in Canada, where building separate facilities for a small number of young offenders is often impractical and costly, and where putting a child in a separate facility often involves sending him or her a great distance from the family. The government was also concerned about avoiding the situation in which a child who turns 18 during his or her term of incarceration must suddenly be moved into an adult facility. Finally, the government was concerned about incarcerating young children with more dangerous youth offenders.

However, despite these justifications, Canada has been criticized by the Committee on the Rights of the Child and by numerous witnesses for its unwillingness to withdraw its reservations and conform to international standards in these regards.

3. Article 3(2) of the Optional Protocol on the Involvement of Children in Armed Conflicts

Upon ratifying the Optional Protocol, Canada made the following declaration concerning article 3(2), which requires States Parties allowing voluntary recruitment to the national armed forces for children under 18 to put specific safeguards in place:

Declaration:

Pursuant to article 3, paragraph 2, of the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts, Canada hereby declares:

1. The Canadian Armed Forces permit voluntary recruitment at the minimum age of 16 years.

2. The Canadian Armed Forces have adopted the following safeguards to ensure that recruitment of personnel under the age of 18 years is not forced or coerced:

(a) all recruitment of personnel in the Canadian Forces is voluntary. Canada does not practice conscription or any form of forced or obligatory service. In this regard, recruitment campaigns of the Canadian Forces are informational in nature. If an individual wishes to enter the Canadian Forces, he or she fills in an application. If the Canadian Forces offer a particular position to the candidate, the latter is not obliged to accept the position;

(b) recruitment of personnel under the age of 18 is done with the informed and written consent of the person’s parents or legal guardians. Article 20, paragraph 3, of the National Defence Act states that ‘a person under the age of eighteen years shall not be enrolled without the consent of one of the parents or the guardian of that person’,

(c) personnel under the age of 18 are fully informed of the duties involved in military service. The Canadian Forces provide, among other things, a series of informational brochures and films on the duties involved in military service to those who wish to enter the Canadian Forces; and

(d) personnel under the age of 18 must provide reliable proof of age prior to acceptance into national military service. An applicant must provide a legally recognized document, that is an original or a certified copy of their birth certificate or baptismal certificate, to prove his or her age.

Currently, Canada allows voluntary recruitment to the Canadian Armed Forces at the age of 16; however, the National Defence Act[119] has been amended to ensure that no one under the age of 18 is sent into a combat zone.

C. ENFORCEMENT MECHANISMS

As noted earlier, the enforcement mechanism established by the Convention on the Rights of the Child is the UN Committee on the Rights of the Child, which receives periodic reports on Canada’s compliance with the treaty. The Continuing Committee of Officials on Human Rights is charged with facilitating preparation of Canada’s country reports to the UN Committee.

D. CANADA’S FEDERAL NATURE

Canada’s general handling of its treaty ratification and implementation process may be the primary obstacle to effective protection of children’s rights in Canada; but a number of other, more specific, factors also play a role. Inevitably, Canada’s federal nature adds a level of complexity to implementation of the Convention in Canada. Jurisdiction is a significant issue when applying children’s rights on the ground.

Witnesses across Canada and abroad, including the UN Committee through its Concluding Observations, noted that Canada lacks uniform national standards in a number of key areas with direct impact on children’s rights. This situation has arisen because of Canada’s constitutional structure and the broad nature of the Convention itself, which touches on a variety of issues under both federal and provincial jurisdictions. The Committee heard testimony as to varying standards across Canada concerning the minimum age for employment,[120] the provision of public health care to autistic children and children with foetal alcohol syndrome disorder (FASD),[121] the separation of young offenders from adults,[122] and the age at which child protection laws apply.[123]

Through its hearings, the Committee also learned that the institutions established to protect children’s rights in each province perform significantly different functions, with varying levels of independence and abilities to investigate and remedy violations of the rights of children. Nine provinces in Canada currently have a child and youth advocate. These bodies retain a loose affiliation and dialogue through the Canadian Council of Provincial Child and Youth Advocates. Some examples of these institutions and their differences were set out in Chapter 4 of our Interim Report. Although none of these bodies are constituted under legislation referring to the Convention on the Rights of the Child, in practice, all make reference to the Convention in the course of their work.[124]

However, the UNICEF Innocenti Research Centre notes that, despite a country’s federal nature, governments need to be careful to ensure that jurisdictional differences do not “lead to discrimination against some children because they happen to live in a certain province, state or region.”[125] Members of the Committee on the Rights of the Child told us that they expect the federal government to comply with the Convention despite the complexities of ensuring that federal, provincial, and territorial laws conform. The UN Committee sees Canada’s difficulties with its federal structure as internal. Its latest Concluding Observations highlight this point:

The Committee notes that the application of a considerable part of the Convention falls within the competence of the provinces and territories, and is concerned that this may lead, in some instances, to situations where the minimum standards of the Convention are not applied to all children owing to differences at the provincial and territorial level.

The Committee urges the Federal Government to ensure that the provinces and territories are aware of their obligations under the Convention and that the rights in the Convention have to be implemented in all the provinces and territories through legislation and policy and other appropriate measures.[126]

In its General Comment on implementing the Convention, the UN Committee also emphasized that,

decentralization of power, through devolution and delegation of government, does not in any way reduce the direct responsibility of the State party’s Government to fulfil its obligations to all children within its jurisdiction, regardless of the State structure.[127]

E. THE COMMITTEE’S COMMENTS

It appears to our Committee that the federal government’s approach to compliance with children’s rights, and with the Convention in particular, is inadequate. As noted in our Interim Report, as well as this and the previous chapters, jurisdictional complexities, the absence of effective institutions, an uncertain approach to human rights law, and lack of transparency and political involvement indicate that the Convention on the Rights of the Child is being ineffectively applied in the Canadian context.

This is so despite the hopeful tone adopted in Baker v. Canada (Minister of Citizenship and Immigration) concerning the government’s obligation to respect the values outlined in the Convention. Although international human rights norms have been given domestic scope by the government and courts, their role is still a secondary one. While international law is a consideration in the judicial decision-making process, the values reflected in international instruments that are not directly incorporated into domestic law serve mainly to inform the contextual approach to statutory interpretation. The federal government itself puts great stock in its policy and consultation approach to the Convention on the Rights of the Child, but has shown itself unable to communicate a clear and unambiguous message about how precisely Canada is in compliance if the explicit language of the Convention is only occasionally found replicated in Canadian law.

All levels of government across Canada have a responsibility, and the capacity, to protect children’s rights. Certainly there is widespread recognition across government of the importance of children – throughout its hearings the Committee was overwhelmed by expressions of concern and care for children’s rights in each jurisdiction. It is simply a question of how effectively governments are accomplishing this task. Canada’s courts have begun to move towards referring to the Convention in a variety of areas of the law – from immigration to child protection issues.[128] But what is needed to push both the issue and respect for the democratic process further is enhanced accountability, increased parliamentary and public input, and a more open approach to compliance that promotes transparency and enhanced political will. Right now it seems that political will often gets lost in the complexity of coordination and cooperation between jurisdictions. Kathy Vandergrift emphasized this point, stating that “sometimes the best interests of children get lost in those contests between federal and provincial governments.”[129]

Yet, despite Canada’s federal system, our Committee believes that jurisdictional complexities are manageable. In support of this view, Suzanne Williams noted that,

[w]hile [the jurisdictional issue] is a real challenge, it can also be a real opportunity. We have several jurisdictions that are acting to improve the lives of children, and we can learn from one another and share resources. A real strength that we have is the diversity in this country. Jurisdictional challenges should not be considered a barrier that cannot be overcome.[130]

This can be done by creating tangible mechanisms to ensure the implementation in Canada of the rights contained in the Convention, and to ensure enhanced government and Parliamentary accountability to children and all citizens. As stated by Suzanne Williams, “[g]iven Canada’s diversity, not only across jurisdictions but also with legal systems, and the multicultural makeup of Canada, there is a real need for effective coordination of children rights.”[131] Through this study, our Committee looked for ways to handle the framework for implementation of children’s rights in Canada more effectively so as to breathe life into the Convention and foster an environment that supports the strong protection of children’s rights.

The suggestions that were put before the Committee include: a form of enabling legislation; the establishment of monitoring bodies at the federal level to oversee the protection of children’s rights; a more disciplined and structured process for both ratification and incorporation of international law; a simplified and more transparent reporting process; wide dissemination of the UN Committee’s Concluding Observations; enhanced consciousness-raising concerning the rights enshrined in the Convention; capacity-building in the voluntary sector; and most importantly, ensuring the involvement of children throughout these processes. Our Committee is also particularly concerned with finding an effective role for Parliament in fostering an environment that is more conducive to the real protection of children’s rights in Canada. The various mechanisms and recommendations put forward will be discussed further in Chapters 17 and 18.

F. THE FOLLOWING CHAPTERS

In order to come to a better appreciation of the need for those recommendations, the Committee undertook an analysis of the application of specific articles of the Convention on the Rights of the Child to assess the impact of the Convention on children’s daily lives in Canada – chapters 5 to 16 of this report delve into these specifics of children’s rights. This discussion was not intended to be a full study of each issue. Not every article of the Convention on the Rights of the Child is discussed, and some articles are dealt with in more depth than others. Witnesses in a particular area may have been more aware of the rights outlined in the Convention and used the international instrument to help frame the public policy debate, while other rights remained unrepresented. For example, our Committee notes that it received very little information from a gender perspective with specific respect to the girl child. The following chapters are our Committee’s review of implementation and use of the Convention in Canada, rather than an attempt to conduct an exhaustive study of the various issue affecting children.

These chapters are premised on the view that “[t]he rights of the child are interdependent”[132] and overlapping – it is important not to view them in isolation.
Article 3, setting out the principle of the best interests of the child, is a concept woven throughout discussion of these themes. That principle is a cornerstone of this report and the Committee’s study.

In making its observations and suggestions, the Committee also kept in mind that the Convention on the Rights of the Child is based on the concept of the progressive realization of rights. As noted by Kathy Vandergrift, the Convention does not require States Parties to fulfil all their obligations at once. However, States Parties should be seen to be moving forward on major indicators.

The chapters that follow highlight the Committee’s observations with respect to implementation and use of the Convention in terms of issues of participation and expression, violence against children, exploitation of children, youth criminal justice, child welfare, adoption and identity issues, migrant children, health issues, early childhood development and care, child poverty, sexual minority children, and Aboriginal children. Keeping in mind that Canada’s international legal obligations do not leave room for jurisdictional differences to justify diminished respect for human rights, our Committee’s observations are accompanied by suggestions and recommendations as to how the federal, provincial, and territorial governments can all move forward to ensure the protection of children’s rights in Canada.

A. INTRODUCTION

A number of articles in the Convention on the Rights of the Child deal with the child’s right to participation and freedom of expression. As cited in Chapter 3, article 12 represents the child’s basic right to express his or her views and the opportunity to be heard in proceedings affecting him or her, in accordance with the child’s age and maturity. A report issued by the Bernard van Leer Foundation notes that article 12 is not only a “substantive right which entitles children to be actors in their own lives, not merely passive recipients of adult care and protection,”[133] but is also a “procedural right through which to realise other rights, achieve justice, influence outcomes and expose abuses of power.”[134]

Article 13 of the Convention complements article 12, emphasizing freedom of expression:

Art. 13(1) The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.

(2) The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Articles 14 and 15 focus on specific forms of expression – the child’s freedom of thought, conscience and religion, and freedom of association.

Art. 14(1) States Parties shall respect the right of the child to freedom of thought, conscience and religion.

(2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

(3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Art. 15(1) States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

(2) No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

B. THE RIGHT OF CANADIAN CHILDREN TO PARTICIPATE AND TO BE HEARD

The convention states that children have the right to their own opinions, but we are never encouraged to speak. If we do voice our opinions, chances are that our opinions will be discussed by policymakers who are unwilling to listen… If you walk away with anything at all today, please walk away realizing that youth know what they want to see and know what they need to make a difference. It is a matter of implementation from others that trust that we know what we are doing.[135]

When you do talk about it and when you do have these debates, your thoughts and your views are taken into account in school. It does not go beyond that. There is no way outside of school to show your opinion on any type of deal, like politics or anything. There is no place for you to say what you think about this, especially since you do not vote until you are 18.[136]

The child’s right to participate and to be heard is an important political right – it is one of the most fundamental principles underlying the Convention on the Rights of the Child. Our Committee heard over and over again how children and youth feel that they are not consulted or that their views are discounted, often on matters that have a significant impact on their lives. Articles 12 to 15 of the Convention stipulate that in the appropriate circumstances, the child has a right to be heard in matters that affect his or her well-being.

However, even beyond the individual’s ability to participate in his or her own life, the Convention emphasizes that youth have a right to participate or to be consulted on broader issues and decisions that have an impact on their lives. Not only is this a right, but it is also an important part of effective decision- and policy-making. As noted in the Bernard van Leer report, society has to recognize that children are experts in their own lives, and often have valuable insights that can improve the implementation of a wide variety of policies and decisions. Lisa Wolff of UNICEF Canada told us that “[w]hen we listen to the children, we learn different things and our policy is different because of their comments.”[137] Nana, a young person who appeared before our Committee in Toronto emphasized this position, stating that it must be recognized that children “have a really big power and a voice to not only say how it feels, but also what it takes to change it.”[138] Our Committee strongly believes that children should be consulted on all significant issues affecting their rights and lives.

Moreover, such consultation needs to be meaningful. The Committee on the Rights of the Child comments that:

[A]ppearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change. Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights.[139]

When consulted, children should be included as active participants in decision-making – it is crucial that the voices, and not only the choices, of children are heard. Adults must not interpret the needs and wishes of children, but listen to them directly. Judy Finlay, Ontario’s Child Advocate ,emphasized that meaningful participation means: “don’t speak about us without us.”[140]

Kay Tisdall of the University of Edinburgh and Wayne MacKay of the Dalhousie Faculty of Law argued against the tokenism that so often occurs when children are invited to participate in events. When children are invited to consultations or to conferences, their views have to be taken seriously and they should be given a role in the decision-making process. As stated by Céline Giroux, former Vice President of the Commission des droits de la personne et des droits de la jeunesse of Quebec :

[W]e will have to realize that it is not enough to speak on behalf of children and young people. We must also speak with them, help them to express their thoughts, educate them about their rights and allow them to influence the decisions that concern them.[141]

Meaningful participation can also only occur when the voices of youth are acted upon. As noted by Brent Parfitt of the Committee on the Rights of the Child,

[t]oo often what we see, I am sure, is tokenism: that a number of children, for instance, are invited to a national conference to present “the youth perspective.” I do not believe that is meaningful youth participation.

Meaningful youth participation is where children have a say or some role in actual decision-making. That may seem a little strange, but it is possible, and there are many examples both at the community school level, and indeed at the governmental level, provincial and federal.[142]

Hearing from youth and other witnesses made it clear to our Committee that youth participation can make decision-making significantly more effective. Certainly when it comes to some of the deeper concerns facing children today, it is imperative that we turn to children and youth for their perspectives and suggestions. Billie Schibler, Manitoba’s Child Advocate, emphasized this point, telling us that in such situations

the answers must come from the children themselves. They must tell us what they need and what they want from us and we must listen…

As professionals, if we do not have the answers, the only place… that I feel those answers lie is hearing the young people, going into the communities, meeting with them.[143]

The former Minister of Social Development, Ken Dryden, echoed that view, stating that:

The way to get underneath this, so that we have a real drive and energy to do something for children, is to listen to children’s voices, not mini-adult voices. Ask them to talk about their lives, each part of their lives. What does it feel like to do this? What are you most proud of? What bugs you?[144]

Encouraging such participation as emphasized in the Convention is also an extremely valuable tool in fostering the development of a stronger generation of youth. Kay Tisdall noted that youth participation is a powerful tool in countering disillusionment. Wayne MacKay told us that participation brings out the best in youth – their participation more often than not creates a “a win-win situation because usually when you empower in those ways, they exceed your expectations.”[145] Kathy Vandergrift further emphasized this point:

We could unleash bundles of energy in this country for the common good if we were to use some of the same strategies that we use in international development by working with youth and young people and engaging them in development. That potential exists.[146]

Ryan Stratton, a youth who spoke to our Committee in St. John’s, Newfoundland, told us that:

If you provide youth with the opportunity, if you let them know that the opportunities are there, and you… get them excited, then you can get youth involved in anything because we want to get involved; we are looking for stuff to do. We are sick of sitting home saying this place is boring, I am going for a walk. We want something to do and if the opportunity comes up, we are really excited.[147]

As noted in the Bernard van Leer report, respecting the Convention by allowing a child to participate in decisions concerning his or her own life can have a significant effect on child development, permitting the child to acquire greater levels of competence. A report prepared for the Child Protection Unit of the Canadian International Development Agency commented that “[c]hildren’s capacities are developed most effectively through interaction: the process of learning generates development, and children grow in competence through participation.”[148] By allowing children to take greater responsibility in their lives, they also become less vulnerable.

It is now accepted that children who are active in decision-making, who learn from their own experience, as well as observing adults engaging in “causes” they believe in, contribute to making a change and are less prone to depression, hopelessness, and suicide.[149]

A number of youth appearing before our Committee emphasized the importance of participation. Nathaniel Mayer-Heft, a student in Montréal, pointed out that children need to become involved at an early age in order to become more active participants in society later on in their lives. Even if they cannot vote, they should be encouraged to become more involved in the political process so that they can discover its relevance to their lives.

No, they should not be voting at age 12, but why not ask them for their opinions? Why not get students from the ages of 12 years to 17 years involved in politics. You know, to build interest, so that when they reach 18 years, they will vote. I think that involvement would increase the number of people who vote.[150]

Rachel Gardiner, a student in St. John’s, told us that she thinks

people become more involved when they understand. If youth understood how different things in the political system affected them, then they would become more involved…[and] educate other youth as to how it affects youth as a whole so that everyone can get involved and everyone can make a difference.[151]

Joelle LaFargue, who appeared before our Committee in Fredericton, said that:

One thing I have noticed about kids my own age or younger, or sometimes even older, is that when you ask them their opinions, they shrug and say, “I don’t know.” I find this sad because I believe that everyone is entitled to have their own opinions and to be heard. Often, kids do not have opinions or they do not say that they have opinions because they feel that it does not matter because they are either not taken seriously, or when they do say their opinions, it does not change anything…

It would be interesting if politicians came… to classes to… talk about how the political process works, about what type of things people in politics do, and maybe even more committees like this one to ask for children’s opinions. That would make them feel like they are being listened to. They are being educated because that is the best way to take advantage and actually do things, if you have the knowledge you need to make the right decisions and say your opinions.[152]

When these important Convention rights are disregarded, the voices of children tend to be “lost in the sauce,” [153] in the words of one youth who appeared before our Committee in Toronto. Currently the voices of children and youth are rarely heard in decision-making in government, in Parliament, and at the NGO and service provider level. Our Committee strongly believes that children and youth should be encouraged to become more involved in the political and policy-making processes. Ensuring that children’s voices are heard and taken into account in policy decisions across Canada will be a significant step towards imbuing the Convention on the Rights of the Child with meaning in the Canadian context.

RECOMMENDATION 1

Pursuant to articles 12 to 15 of the Convention on the Rights of the Child, the Committee recommends that the federal government dedicate resources towards ensuring that children’s input is given considerable weight when laws, policies and other decisions that have a significant impact on children’s lives are discussed or implemented at the federal level.

A. INTRODUCTION

The Convention on the Rights of the Child is the first international human rights instrument to expressly address the protection of children from violence. A variety of its articles deal with this issue. Article 19 provides for a broad protection of children from abuse and neglect, holding that:

Art. 19(1) States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

(2) Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 28(2) deals with the issue of corporal punishment in schools:

Art. 28(2) States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.

Article 37 prohibits violence against children in the context of the justice system, prohibiting torture and the deprivation of liberty. This provision will be dealt with in more detail in Chapter 8.

Finally, article 38 and the Optional Protocol on the Involvement of Children in Armed Conflicts deal with the question of child soldiers:

Art. 38(1) States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

(2) States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

(3) States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

(4) In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

In the context of violence against children, this chapter will examine the issues of corporal punishment of children at home and in the school environment, bullying, and the involvement of children in the Canadian Armed Forces.

B. ARTICLES 19 AND 28: CORPORAL PUNISHMENT

With regard to spanking, we say that society must eliminate violence but it is okay at home. That is not right.[154]

I urge States to prohibit all forms of violence against children, in all settings, including corporal punishment…[155]

Our Committee heard from numerous witnesses with respect to corporal punishment, an issue that has become a flashpoint for children’s rights advocates because of the rights outlined in the Convention on the Rights of the Child and because of a recent Supreme Court of Canada decision, Canadian Foundation for Children, Youth, and the Law v. Canada (A.G.).[156]

The UN Committee on the Rights of the Child defines corporal punishment as:

any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices).[157]

Yet, in January 2004, the Supreme Court upheld the constitutional validity of section 43 of Canada’s Criminal Code,[158] the “reasonable chastisement” defence, which allows for the correction of children by force:

s. 43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

The court found that the Criminal Code provision violated neither the life, liberty and security of the person, nor the equality, or cruel and unusual punishment rights contained in the Charter. However, in upholding section 43, the court also narrowed the reasonable chastisement defence, specifying that physical discipline:[159]

· May generally only be used by parents – although teachers may use physical discipline to remove a child from the classroom or to secure compliance;

· May only be used against children older than two and not yet teenagers;

· May not be used against children incapable of learning from it because of a disability or some other contextual factor;

· May only be applied if it is minor corrective force of a transitory or trifling nature;

· May not involve the use of objects or blows or slaps to the head (such actions are deemed unreasonable);

· Must be corrective and used to address actual behaviour, rather than as an expression of frustration or an abusive personality; and

· Must be intended to restrain or control, or to express symbolic disapproval.

The court stated that the gravity of the precipitating event is not relevant to use of the section 43 defence, and that courts will determine “reasonableness” based on an objective test with respect to the particular circumstances of the case.[160]

Beyond the federal criminal law, it is important to note that the standard for foster care and the way that provincial Education Acts across Canada deal with physical discipline in the classroom vary from province to province.[161] Alberta, Ontario and Manitoba have not explicitly prohibited corporal punishment in their Education Acts.[162]

Citing the Convention on the Rights of the Child, a great number of witnesses, including representatives of the Committee on the Rights of the Child, appeared before our Committee to urge the federal government to repeal the Criminal Code’s section 43 defence. Marv Bernstein, Children’s Advocate for Saskatchewan, stated that “it is time for Canada to step up to the plate or risk significant embarrassment on the international stage.”[163] In its latest Concluding Observations with respect to Canada, the Committee on the Rights of the Child welcomed:

the efforts being made by the State party to discourage corporal punishment by promoting research on alternatives to corporal punishment of children, supporting studies on the incidence of abuse, promoting healthy parenting and improving understanding about child abuse and its consequences. However, the Committee is deeply concerned that the State party has not enacted legislation explicitly prohibiting all forms of corporal punishment and has taken no action to remove section 43 of the Criminal Code, which allows corporal punishment.

The Committee recommends that the State party adopt legislation to remove the existing authorization of the use of “reasonable force” in disciplining children and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed.[164]

Dr. Claire Crooks of the CAMH Centre for Prevention Science told our Committee that this is one area in which “there is a clear cut role for law to set the standard.”[165]

In the words of one young person who appeared before our Committee in St. John’s, Newfoundland, corporal punishment is damaging and counter-productive:

Violence does not help at all because parents are supposed to help you make the right decisions. They are supposed to help you out. If you are afraid of your parents, if you are afraid that they will physically hurt you, you will not open up to them, you will not talk to them and you will not have a good relationship with them…

You will not trust them. You will not share with them because you will be afraid.[166]

With reference to concern about the effect that a ban on corporal punishment might have on parents, the Commissioner for Human Rights at the Council of Europe stated that “[t]he purpose of criminalizing all corporal punishment is not, of course, to prosecute and punish more parents.”[167] Rather, such criminalization

satisfies human rights by giving children equal protection of their physical integrity and human dignity. It gives a clear message that hitting children is wrong – at least as wrong as hitting anyone else. Thus it provides a consistent basis for child protection and for public education promoting positive forms of discipline. As attitudes change, so the need for prosecution and for formal interventions into families to protect children will diminish.[168]

The Committee on the Rights of the Child stated in its General Comment that it expects states to prosecute parents rarely:

Children’s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children’s best interests. It is the Committee’s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child…

Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law…

Where, despite prohibition and positive education and training programmes, cases of corporal punishment come to light outside the family home - in schools, other institutions and forms of alternative care, for example - prosecution may be a reasonable response…[169]

Our Committee echoes this call for the repeal of section 43 of the Criminal Code. Countries around the world are banning corporal punishment at home and in schools. By August 2006, the Committee on the Rights of the Child noted that more than 100 countries had prohibited corporal punishment against children in schools and in penal systems,[170] and by early 2007, 16 European countries had explicitly banned all corporal punishment of children in law and repealed any “reasonable chastisement” defences.[171]

Through its Concluding Observations and General Comment on corporal punishment, the UN Committee on the Rights of the Child consistently recommends that states prohibit all forms of corporal punishment, including physical discipline in the family. In order to facilitate reaching this goal, the Committee suggests that States Parties initiate national campaigns to raise awareness of the negative effects of corporal punishment and to encourage the development of positive, non-violent child-rearing and educational practices. In its General Comment, the Committee stated that:

Addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is not only an obligation of States parties under the Convention. It is also a key strategy for reducing and preventing all forms of violence in societies…

In rejecting any justification of violence and humiliation as forms of punishment for children, the Committee is not in any sense rejecting the positive concept of discipline. The healthy development of children depends on parents and other adults for necessary guidance and direction, in line with children’s evolving capacities, to assist their growth towards responsible life in society.

The Committee recognizes that parenting and caring for children, especially babies and young children, demand frequent physical actions and interventions to protect them. This is quite distinct from the deliberate and punitive use of force to cause some degree of pain, discomfort or humiliation. As adults, we know for ourselves the difference between a protective physical action and a punitive assault; it is no more difficult to make a distinction in relation to actions involving children.[172]

In keeping with this position, regardless of whether section 43 is repealed, witnesses strongly emphasized the need for public and parental education, including awareness-raising about alternative disciplinary measures. As stated by Brent Parfitt, a member of the Committee on the Rights of the Child:

If Canada is not prepared to implement the recommendations, at least Canada should show some leadership in the area of proper parenting, an alternative to corporal punishment as far as discipline of children is concerned.

I think one area the Senate could support is parenting education, especially in the high school situation, where alternatives to corporal punishment are taught. Unfortunately, or maybe fortunately, most of us learn parenting skills from our parents, and that may be good or it may be bad.

If our parents exercised corporal punishment, in all likelihood, we may exercise the same form of disciplinary procedures. We should be taught, then, in school about alternatives to discipline, rather than the use of corporal punishment.[173]

Jim Igliorte, Child and Youth Advocate for Newfoundland and Labrador, pointed out the need for a national education campaign about the harms of physical punishment, as well as the merits of positive discipline by all adults in positions of authority over a child. Such a campaign could highlight the difference between physical interventions to protect children and deliberate punitive use of force to cause pain, discomfort, or humiliation.

The Commissioner for Human Rights at the Council of Europe has said that “[a]ny national strategy for the elimination of corporal punishment has to include… longer-term measures to influence social attitude and promote positive alternative methods of relating and communicating.”[174] Joan Durrant spoke to us of the need to see parenting less as a power and punitive relationship, and more as a teaching and guiding relationship. Expressing a similar perspective, Dr. Gilles Julien, a social paediatrician and the President of the Fondation pour la promotion de la pédiatrie sociale, told us that parents need to learn to give children clear rules and frameworks: “children need parameters, not spanking.”[175] Raising parents’ awareness and teaching them new kinds of relationship and communication strategies can lead to their deeper “visceral understanding”[176] of how to deal with discipline in the long term.

Certainly, there is broad consensus in the children’s rights community on this issue. More than 220 professional organizations have endorsed a Joint Statement on Physical Punishment of Children and Youth[177] arguing for more constructive approaches to discipline. The goal is not to penalize parents but to educate and support them.[178] Jaap Doek has stated that:

In my dream world, every new parent would pass a test in parenting skills, rather like a new driver having a licence to be allowed on the roads. Obviously that can never happen. But governments do have a big role to play in promoting the idea of parenting classes… The problem is that it’s the responsible adults who are most likely to go to parenting classes, but they’re also the ones who are least likely to be violent to their children. We need to find ways of targeting the unreceptive, of getting the parents most at risk of violent behaviour to parenting classes. But we need to do this without stigmatising the parents who are considered to be the high-risk cases. This is the challenge.[179]

And yet, witnesses said that such an education campaign should target not only parents. The Commissioner for Human Rights at the Council of Europe noted that clear policies should also be developed for teachers and preschool staff, for health care personnel, for social workers and for other relevant professionals with respect to their role in preventing corporal punishment, and in dealing with specific situations in which a child may be suffering from abuse.[180]

Our Committee consequently notes from the outset that education should be a primary goal of any initiatives taken in this sphere. This is a position that was articulated by the Committee on the Rights of the Child, whose members told our Committee that public education is even more important than changing the law. There is a clear need for further research into alternative methods of discipline, as well as the effects of corporal punishment on children. As well, the Committee believes that the federal government should launch education programs in the public sphere to foster a societal movement against corporal punishment, creating a contextual framework from which individual families can draw support. As suggested in the United Nations’ recently released seminal study on violence against children, which used the Convention on the Rights of the Child as a framework for its discussions and recommendations, gender-sensitive parental education programs should be developed to promote healthy parent-child relationships, orienting parents towards constructive and positive forms of discipline and approaches to child development, while also taking into account children’s evolving capacities and the importance of respecting their views. Education is also necessary to ensure that parents do not fear the loss of the reasonable chastisement defence. Our Committee draws on the advice of the Committee on the Rights of the Child in its General Comment on corporal punishment:

Given the widespread traditional acceptance of corporal punishment, prohibition on its own will not achieve the necessary change in attitudes and practice. Comprehensive awareness‑raising of children’s right to protection and of the laws that reflect this right is required…

In addition, States must ensure that positive, non-violent relationships and education are consistently promoted to parents, carers, teachers and all others who work with children and families. The Committee emphasizes that the Convention requires the elimination not only of corporal punishment but of all other cruel or degrading punishment of children. It is not for the Convention to prescribe in detail how parents should relate to or guide their children. But the Convention does provide a framework of principles to guide relationships both within the family, and between teachers, carers and others and children. Children’s developmental needs must be respected. Children learn from what adults do, not only from what adults say. When the adults to whom a child most closely relates use violence and humiliation in their relationship with the child, they are demonstrating disrespect for human rights and teaching a potent and dangerous lesson that these are legitimate ways to seek to resolve conflict or change behaviour.[181]

With these observations in mind, the Committee would like to echo the words of Paulo Sérgio Pinheiro, the independent expert who piloted the UN Study on Violence Against Children:

A basic assumption of the Convention on the Rights of the Child, contained in its preamble, is that the family is the natural environment for the growth and well-being of all its members – and particularly children – thereby recognizing that the family has the greatest potential to protect children and provide for their physical and emotional safety. The privacy and autonomy of the family are valued in all societies and the right to a private and family life, a home and correspondence is guaranteed in international human rights instruments. Eliminating and responding to violence against children is perhaps most challenging in the context of the family, considered by most as the most “private” of private spheres. However, children’s rights to life, survival, development, dignity and physical integrity do not stop at the door of the family home, nor do States’ obligations to ensure these rights for children.[182]

RECOMMENDATION 2

· Calling on the Department of Health to undertake research into alternative methods of discipline, as well as the effects of corporal punishment on children;

· Repeal of section 43 of the Criminal Code by April 2009; and

C. ARTICLE 19: BULLYING

Bullying is another form of violence against children that was an important area of concern for advocates appearing before the Committee with respect to the rights of children and Canada’s compliance with article 19 of the Convention on the Rights of the Child. Bullying can take a variety of forms. Most often one thinks of bullying as direct physical or verbal aggression against a child by his or her peers. Yet bullying can take on many other more subtle forms, such as sexually inappropriate behaviour, name calling, gossip, social exclusion, and other forms of emotional intimidation.

Faye Mishna of the University of Toronto provided our Committee with statistics on bullying in Canada. She told us that between 10% and 30% of Canadian children surveyed experience bullying at school at least some of the time, and that in a World Health Organization survey, Canadian youth were found to have a higher rate of victimization than the international average in a number of areas.[183]

Professor Mishna also told us about gender differentials with respect to bullying. She said that boys are more likely to be bullied and victimized according to traditional stereotypes of bullying. However, while boys experience higher rates of direct and physical aggression, girls are more likely to experience indirect aggression, such as social exclusion and gossip. It is important to take these differences into account in any study of the issue. Professor Mishna also pointed out that bullying is an issue of particular concern for groups of children that are already marginalized or vulnerable. Bullying is often motivated by intolerance for others based on perceived membership in a group, such as sexual orientation, socio-economic status, race, and disability.

A number of witnesses told our Committee about the changing nature of bullying in modern society. Professor Mishna noted that the Internet and other new electronic technology, such as cell phones and web cameras, have become the “schoolyard” for new forms of bullying that can include stalking, sexual solicitation, and pornography. The anonymity of the Internet makes this form of bullying particularly troubling. In a brief submitted to the Committee, Professor Mishna cited statistics noting that 46% of Canadian children and youth surveyed had experienced unwanted sexual advances and sexually inappropriate discussions in chat rooms, 43% were approached on the Internet by someone who wanted personal information from them, and 25% of Canadian children and youth who used the Internet received hateful emails.

Bullying often goes underreported, but can have severely negative consequences for children. Professor Mishna told our Committee that many children avoid seeking help from adults for fear of not having their concerns taken seriously – many adults may not perceive certain behaviour to be bullying or to be a serious issue that warrants attention. Children themselves may not recognize that they are being victimized, may fear retaliation, or may be ashamed of their victimization or blame themselves, thus further inhibiting reports of bullying. The result is that concerns about bullying are effectively silenced, and bullying itself becomes normalized in children’s lives. The ramifications of this are far-reaching, with negative repercussions on children’s academic and social well-being, psychological and emotional development, and physical health. Professor Mishna noted that those who bully and who are bullied often become involved with mental health, juvenile justice, special education and social services institutions in the longer term. A student who appeared before our Committee in Toronto emphasized the insidious effects of bullying, telling us that “the traumatic effect [of bullying] does have an impact on [children’s lives]. If they cannot take on the bully they’ll take on people inside the family or those they feel are… not doing anything about it which causes this big chain which really needs to be broken.”[184]

Witnesses expressed concern that Canada was not living up to its obligations under the Convention on the Rights of the Child with respect to this problem. In the World Health Organization’s young people’s health survey, Canada ranked 26^th and 27^th of 35 countries in terms of measures to deal with bullying and victimization. Many countries are developing national campaigns to address bullying, while Professor Mishna noted that Canada as yet has none. She told us about PREVNET (Promoting Relationships and Eliminating Violence Network), a new initiative of the Network of Centres of Excellence that are currently developing a national strategy to address child and youth bullying and victimization.

Witnesses noted that a number of solutions are possible. The UN Study on Violence Against Children recommended that states

[p]revent and reduce violence in schools through specific programmes which address the whole school environment including through encouraging the building of skills such as non-violent approaches to conflict resolution, implementing anti-bullying policies and promoting respect for all members of the school community.[185]

Professor Mishna also emphasized the need for education of teachers and parents to teach them more about peer victimization and intervention strategies. Our Committee echoes these concerns, noting that a national strategy is needed to combat bullying in Canada and to bring this country into fuller compliance with the Convention. Such a strategy should include a national education campaign to teach children, parents, and teachers about bullying, and to promote conflict resolution and effective intervention strategies.

RECOMMENDATION 3

D. ARTICLE 38 AND THE OPTIONAL PROTOCOL: CHILDREN INVOLVED IN ARMED CONFLICTS

Canada ratified the Optional Protocol on the Involvement of Children in Armed Conflicts in July 2000, at the same time attaching an explanatory statement specifying that Canada allows voluntary recruitment at age 16 and describing the circumstances in which recruitment of those under age 18 may take place.[186] In effect, individuals under 18 must provide proof of age and the consent of a guardian, who must be fully informed and fully comprehend the rights of the child in this regard. Prospective recruits under 18 must also watch an instructional video and read brochures to ensure that he or she is fully informed of what recruitment entails. Sixteen year-olds are only permitted to apply for Military College or to enrol in the Reserves. Moreover, individuals under 18 may withdraw from the military at any time with no penalty. Canada’s National Defence Act has also been amended to indicate that no individual under 18 years of age shall be sent into a theatre of hostilities.

A number of witnesses expressed frustration with the fact that Canada allows voluntary recruitment at a lower age than many other developed countries. They argued that Canada should not allow recruitment at the age of 16: the federal government should raise the age of recruitment to the Canadian Armed Forces and withdraw its explanatory statement to the Optional Protocol. The Canadian Coalition for the Rights of Children expressed concern that the military is increasingly targeting young people (ages 16-34) in its recruitment programs,[187] while Kathy Vandergrift pointed out that those under 18 still receive full military training even if they are not sent to a theatre of hostilities. Professors Schabas and Driedger pointed to the consequences of allowing children into the military, emphasizing the need to encourage youth to finish their high school education rather than joining the military too young.

In its Concluding Observations with respect to the Optional Protocol, the Committee on the Rights of the Child echoed some of these concerns, reprimanding Canada for not giving priority to older candidates in the recruitment process.

The Committee notes with appreciation that section 20 (3) of the National Defence Act makes it mandatory to have the consent of one of the parents or the guardian of a person between 16 and 18 years before such person is enrolled in the Canadian Reserve or Regular Forces, in accordance with article 3 (b) of the Protocol. However, the Committee is concerned that, in light of article 38, paragraph 3, of the Convention, no measures have been taken to give priority in the recruitment process to those who are the oldest.

The Committee recommends that the State party give priority, in the process of voluntary recruitment, to those who are oldest and consider increasing the age of voluntary recruitment.

The Committee invites the State party to provide further information on the status of children attending the Royal Military College, particularly as to whether they are considered as just civilian students of a military college or already as military recruits.[188]

Our Committee understands these concerns and strongly reiterates the opinion expressed by a number of witnesses: in order to come into full compliance with the Convention on the Rights of the Child, Canada should withdraw its explanatory statement to the Optional Protocol – there should be no recruitment of individuals under 18 years of age into the military. Not only does the Committee wish to underscore compliance with the Convention and the need to ensure that students remain in school, we also wish to point out that other options are available. While recognizing that, under the National Defence Act, children under the age of 18 are not sent into a theatre of hostilities, the Committee notes that such children recruited into the military still receive full military training. The Committee finds this situation unacceptable. As suggested by Kathy Vandergrift, other options include allowing those under 18 to participate in peace-building training and other activities that fall short of military training and teach youth valuable skills for later in their careers.

Echoing a recommendation of Kathy Vandergrift, the Committee also notes the lack of statistics on the number of 16- and 17-year-olds involved in the military. The Canadian Armed Forces currently keeps statistics on recruits aged 16 to 19, but does not break these data into specific years of age; the figures thus do not enable the federal government to keep track of its international obligations under the Convention on the Rights of the Child and the Optional Protocol. While those under 18 years of age remain in the military, the Canadian Armed Forces should ensure that it compiles statistics on the number of 16- and 17-year-old recruits.

Our Committee wishes to underscore the important role played by Canada in the international sphere as a leader for the protection of human rights and children’s rights. By allowing the recruitment of children into the military, Canada is sending a message to the rest of the world that this is not an issue of primary importance, and that the lines can be effectively blurred between recruitment and military engagement. Our Committee finds this message to be unacceptable. When the lines are blurred, mistakes can happen. Only recently, the British government discovered that it had inadvertently sent 15 recruits who were under 18 to Iraq.[189] The Committee urges the federal government to fully comply with the Convention on the Rights of the Child in this regard, so that Canada may continue to stand as a leader in the international sphere.

RECOMMENDATION 4

Pursuant to article 38 of the Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflicts, the Committee recommends that the Canadian Forces:

· Develop a database to track statistics with respect to the recruitment and involvement of those under the age of 18 in the Canadian Forces;

· Make its recruitment policies with respect to those under 18 years of age openly available to the public;

· Report back to this Committee in July 2009 in order to review recruitment policies and compliance with the Convention.

RECOMMENDATION 5

A. INTRODUCTION

Exploitation is a broad term that covers many violations of children’s rights. For example, article 19 of the Convention on the Rights of the Child, mentioned in the previous chapter, deals with the issue of violence and exploitation. Article 36 deals with exploitation in a more general sense.

Art. 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.

This chapter will focus on the issues of sexual and economic exploitation, two areas of particular concern to witnesses appearing before the Committee.

Article 32 of the Convention deals with economic exploitation and the issue of child labour:

Art. 32(1) States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.

(2) States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

This provision is complemented by the International Labour Organization Convention No. 138 Concerning Minimum Age for Admission to Employment, mentioned in Chapter 2, which generally sets the minimum age for employment at 15 years of age:

Art. 1 Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.

Art. 2(1) Each Member which ratifies this Convention shall specify, in a declaration appended to its ratification, a minimum age for admission to employment or work within its territory and on means of transport registered in its territory; subject to Articles 4 to 8 of this Convention, no one under that age shall be admitted to employment or work in any occupation.

(2) Each Member which has ratified this Convention may subsequently notify the Director-General of the International Labour Office, by further declarations, that it specifies a minimum age higher than that previously specified.

(3) The minimum age specified in pursuance of paragraph 1 of this Article shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.

Articles 34 and 35 of the Convention deal with the issues of sexual exploitation and trafficking in children (although the question of trafficking will be dealt with more fully in Chapter 11).

Art. 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

Art. 35 States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

All of the above provisions are complemented by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, which extends the protections guaranteed to children in Convention articles dealing with the illicit transfer and non-return of children abroad, adoption, and economic exploitation and trafficking in children.

B. ARTICLES 34 TO 36 AND THE OPTIONAL PROTOCOL:
SEXUAL EXPLOITATION

While witnesses did not provide our Committee with significant amounts of evidence on the use of the Convention on the Rights of the Child with respect to the sexual exploitation of children, we nonetheless recognize that this is an important issue. Child pornography, sexual exploitation over the Internet, the commercial sexual exploitation of children, and sexual abuse are themes that arose frequently in our hearings, although seldom in great depth. The Committee on the Rights of the Child devoted attention to the issue in its latest Concluding Observations:

The Committee is encouraged by the role Canada has played nationally and internationally in promoting awareness of sexual exploitation and working towards its reduction, including by adopting amendments to the Criminal Code in 1997 (Bill C-27) and the introduction in 2002 of Bill C-15A, facilitating the apprehension and prosecution of persons seeking the services of child victims of sexual exploitation and allowing for the prosecution in Canada of all acts of child sexual exploitation committed by Canadians abroad. The Committee notes, however, concerns relating to the vulnerability of street children and, in particular, Aboriginal children who, in disproportionate numbers, end up in the sex trade as a means of survival. The Committee is also concerned about the increase of foreign children and women trafficked into Canada.

The Committee recommends that the State party further increase the protection and assistance provided to victims of sexual exploitation and trafficking, including prevention measures, social reintegration, access to health care and psychological assistance, in a culturally appropriate and coordinated manner, including by enhancing cooperation with non-governmental organizations and the countries of origin.[190]

The final report of the UN Study on Violence Against Children[191] emphasized the issue of sexual exploitation and its consequences, noting that children who have been sexually abused are more likely to run away, which exposes them to the risk of further sexual exploitation on the street. The recently released report of the Subcommittee on Solicitation Laws of the House of Commons Standing Committee on Justice and Human Rights notes that the first experience of many individuals involved in prostitution is between the ages of 14 and 18.[192]

The Internet and new electronic technologies are also an issue of significant concern. The numbers provided by Faye Mishna of the University of Toronto in the previous chapter are particularly revealing. Not only does the Internet facilitate the distribution of child pornography, Professor Mishna noted that 46% of Canadian children and youth surveyed had experienced unwanted sexual advances and sexually inappropriate discussions in chat rooms. Initiatives to tackle sexual exploitation that takes place over the Internet and by means of cell phones are of great concern to this Committee, as we note that such technologies are increasingly available to young people and that the implementation of limits and restrictions is difficult.

The UN’s Study on Violence Against Children also highlighted the disproportionate impact of sexual exploitation on girls. Echoing information provided by Marilyn Hedlund of the Government of Saskatchewan’s Child and Family Services Division and Angela Cameron of the FREDA Centre for Research on Violence against Women and Children, the UN report notes that the majority of commercially sexually exploited and sexually exploited children, as well as those who are exposed to sexual violence, are female. Sudabeh Mashkuri of the Metro Action Committee on Violence Against Women and Children provided statistics in a brief submitted to our Committee, noting that girls in Canada generally experience higher rates of sexual and physical assault by family members than boys, and are four times more likely to be sexually mistreated. Girls have been found to be the victims in 8 out of 10 family-related sexual assaults committed against children and youth.[193]

The Convention on the Rights of the Child devotes a number of articles as well as an Optional Protocol to the issue of sexual exploitation. This is clearly an issue of serious concern, and our Committee believes that further action should be taken to enhance the protection of children from sexual exploitation in Canada. Firstly, our Committee wishes to recognize the federal government’s National Strategy to Protect Children from Sexual Exploitation on the Internet, which seeks to: increase law enforcement capacity in this area; provide public reporting and education to prevent victimization; and develop partnerships with the e-learning industry, the private sector and other levels of government to foster effective public awareness, education and crime prevention strategies. Within this strategy, the Committee notes the good work of Cybertip.ca, a child sexual abuse tipline that was launched nationally in January 2005. In line with this strategy, and with comments and observations on prostitution made by the Subcommittee on Solicitation Laws of the House of Commons Standing Committee on Justice and Human Rights, the Committee calls for the federal government to develop a national strategy to specifically combat the commercial sexual exploitation of children.

RECOMMENDATION 6

Pursuant to articles 34 to 36 of the Convention on the Rights of the Child and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, the Committee recommends that the federal government develop and implement a strategy to combat the commercial sexual exploitation of children that will address:

· The predators who create the demand for the commercial sexual exploitation of children;

· Businesses and networks based on the commercial sexual exploitation of children;

· New technologies and their impact on child pornography and the commercial sexual exploitation of children;

· Problem areas in terms of the involvement of children in the fashion industry, in marketing, in the media, and in the travel and tourism industry.

C. ARTICLES 32 AND 36: ECONOMIC EXPLOITATION

As already noted, Canada has yet to ratify one of two fundamental conventions on child labour – Convention No. 138 Concerning Minimum Age for Admission to Employment. Despite the fact that Canada remains broadly respectful of the principles enumerated in that Convention, witnesses from the International Labour Office and the Canadian Labour Congress commented that this inability to ratify the Convention has meant that Canada is becoming “badly branded” [194] among the 147 other States Parties.

The Committee on the Rights of the Child reinforced this criticism in its Concluding Observations:

The Committee greatly appreciates the fact that Canada has committed resources to work towards the ending of economic exploitation of children on the international level. However, the Committee regrets the lack of information in the State party report relating to the situation in Canada. Furthermore, it is concerned that Canada has not ratified International Labour Organization Convention No. 138 concerning the Minimum Age for Admission to Employment and is concerned at the involvement of children under 13 years old in economic activity.

The Committee recommends that the State party ratify International Labour Organization Convention No. 138 concerning the Minimum Age for Admission to Employment and take the necessary measures for its effective implementation. The Committee further encourages the State party to conduct nationwide research to fully assess the extent to which children work, in order to take, when necessary, effective measures to prevent the exploitative employment of children in Canada. [195]

The federal government is unable to ratify the Convention because each province has jurisdiction to set its own minimum age for admission to employment. Currently a number of provinces are in violation of Convention No. 138’s age limit. For example, Alberta’s minimum age for employment is 12 (before being admitted to employment, the child must have permission from his or her parents and the Director of Employment Standards).[196] A number of provinces are unwilling to interfere with children’s participation in work on family farms.

Using Canada’s legal obligations under both the Convention on the Rights of the Child and Convention No. 138 as a framework for her argument, Barbara Byers of the Canadian Labour Congress expressed concern about children involved in the labour force – not because children should never be allowed to take on any form of employment before the age of 15, but because of problems with respect to schooling, physical injury and exploitation. She expressed concern about children who must miss school to work and about the number of accidents on farms and in other workplaces involving children. In an article in Law Now, Linda McKay-Panos referred to a Statistics Canada report indicating that youth who work more than 30 hours per week are 2.4 times more likely to drop out of school before graduation. The same article notes that between 2000 and 2004, 12 workers between the ages of 12 and 19 were killed on the job in Alberta. She cited an Alberta government report which found that younger workers (those between 15 and 24) were more likely to be injured on the job than older workers because they lacked the skills necessary to operate equipment. A 2005 survey of students in British Columbia also found that one-fifth of students reported injuring themselves on the job.[197]

Barbara Byers told our Committee that one serious problem with children involved in the workforce is the fact that children are seldom fully aware of employment laws and regulations, or their rights, and are unable to identify when an employer is acting fairly. For example, young workers may not know when they are entitled to breaks or when they must be paid. They may not know of their right to be free from sexual harassment. Ms. Byers pointed out that some young workers are even blamed for accidents that occur at work, and if they stand up for their rights, they may be fired.

The Committee is aware that the federal government does not have jurisdiction to request individual provinces to change their minimum age of employment laws. However, in order to ensure the protection of children’s rights in Canada, the federal government should enter into intensive dialogue with the provinces and territories to discuss the issue of child employment. Such discussions could delve into the rationale behind Convention No. 138 Concerning Minimum Age for Admission to Employment and the reasons why some provinces need lower ages for youth employment. Issues raised should also highlight concerns with respect to schooling, workplace injuries, and employment standards. As also noted by Barbara Byers and officials from the International Labour Office, our Committee is not interested in preventing children from working on family farms or as babysitters. There is considerable merit to children having some work experience. We do, however, have some serious concerns about working conditions and the need for children to have an opportunity to graduate from high school before becoming fully involved in the workforce. A focus on children’s rights and best interests should underscore all initiatives undertaken in this area.

RECOMMENDATION 7

A. INTRODUCTION

Youth justice and the detention of minors are ongoing issues of concern in Canada and around the world. Governments in developed countries are struggling with new legislative initiatives to tackle youth crime and to provide rehabilitative solutions.

The Convention on the Rights of the Child deals with children in conflict with the law in articles 37 and 40. Article 37 holds that:

Art. 37 States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

This provision seeks to ensure that no child shall be arbitrarily or unlawfully deprived of his or her liberty, and that a child in detention has the right to prompt access to legal and other assistance, as well as the right to challenge the legality of that detention. Article 37 emphasizes that states should use deprivation of liberty only as a last resort and for the shortest period of time when sentencing children. A child must never be sentenced to the death penalty or to life in prison without possibility of release or parole. Finally, article 37 requires that children in detention not be housed with adults unless it is considered in the child’s best interests to do so. However, as noted in Chapter 4, Canada has entered a reservation to article 37(c) stating that:

The Government of Canada accepts the general principles of article 37(c) of the Convention, but reserves the right not to detain children separately from adults where this is not appropriate or feasible.

Witnesses told us that the government adopted this reservation to provide some leeway for remote northern communities in Canada, to avoid the situation in which a child who turns 18 during his or her term of incarceration must suddenly be moved into an adult facility, and to respond to concerns about incarcerating young children with more dangerous youth offenders.

Article 40 of the Convention encourages States Parties to use alternative sentencing and to avoid detention of minors unless rehabilitation cannot be achieved through a non-custodial sentence. It also lists the rights and guarantees necessary to ensure a fair trial for children, and calls for a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law.

Art. 40(1) States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

(2) To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

(3) States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

(4) A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

Ultimately, the Convention on the Rights of the Child requires States Parties to develop and implement a comprehensive juvenile justice policy, and encourages states to establish a child-centred, specialized justice system, the overarching aim of which is children’s social reintegration. The juvenile justice policy should deal with prevention of juvenile delinquency; interventions without resorting to judicial proceedings and interventions in the context of judicial proceedings; the minimum age of criminal responsibility and the upper age limits for juvenile justice; guarantees for a fair trial; and deprivation of liberty, including pre-trial detention and post-trial incarceration.[198]

B. THE RATE OF YOUTH DETENTION IN CANADA

While the average Canadian might believe that there is no reason to worry about youth detention issues in Canada, our Committee has in fact heard some telling facts that make it clear that this is a matter of significant concern to advocates of children’s rights. Witnesses informed us that the percentage of children in detention in Canada is higher than in most other democratic/industrial states, with a disproportionately high detention rate for ethnic minority and Aboriginal children.[199]

The implementation of the Youth Criminal Justice Act[200] in 2003 represented an attempt to lower youth custody rates. Replacing the former Young Offenders Act, this legislation seeks to ensure that a young person will not be sentenced to custody unless he or she has committed a serious violent offence; has not complied with non-custodial sentences; has committed an indictable offence for which an adult would be liable to imprisonment for more than two years, and has a history indicating a pattern of findings of guilt; or, in exceptional circumstances, where the young person has committed an indictable offence and a non-custodial sentence would be inconsistent with the purposes and principles of sentencing of the Act.

Since implementation of the Act the number of youth between 12 and 17 years of age in custody (whether secure, open, or remand) declined from 25,000 in 1999-2000 to 17,100 in 2003-2004. The incarceration rate (the average daily rate of young persons in custody per 10,000 youth in the population) stood at 8.8% in 2003, a 55% decrease since 1994-1995. The number of youth in secure custody is also on the decline, having decreased by 43% between 2002-2003 and 2003-2004. Finally, the number of girls in sentenced custody dropped from 16% to 13% of the total number of youth in sentenced custody between 1999-2000 and 2003-2004.[201]

And yet, not all the statistics have been positive. The number of Aboriginal youth admitted to sentenced custody increased between 2002-2003 and 2003-2004 – from 22% to 28% for Aboriginal males, and from 28% to 35% for Aboriginal females, of the total number of youth sentenced to custody.[202] Not only is the higher number of Aboriginal females significant, but it should also be kept in mind that according to testimony before our Committee, Aboriginal youth make up only 5% of the total youth population in Canada. The number of Aboriginal youth in custody, and of Aboriginal female youth in particular, is disproportionately high.[203] As well, despite improvements, the fact remains that Canada continues to have a higher rate of detention than most other developed countries, and as a result, it stands in clear violation of its obligations to children under the Convention on the Rights of the Child.

These numbers are higher in some provinces than in others. Our Committee sought out information on youth in conflict with the law in Saskatchewan because it had been brought to our attention that as of June 2004, Saskatchewan had the highest rate of cases brought before youth court in Canada and the highest rate of youth incarceration. Saskatchewan’s rate of youth charged more than doubled that for the rest of Canada. A study released by Statistics Canada in December 2005 also showed that while the number of young people in sentenced custody had decreased across Canada, that decline was lowest in Saskatchewan, at only -24%.[204] Lawyer Kearney Healy told our Committee that 75-80% of children in custody in Saskatchewan have disabilities, and the Government of Saskatchewan informed us that 75% of children in custody are Aboriginal – this in a province where only 14% of the youth population is Aboriginal.[205]

Witnesses such as William Schabas of the Irish Centre for Human Rights expressed frustration with Canada’s violation of the Convention due to its high rates of youth detention. In its Concluding Observations, the Committee on the Rights of the Child said that:

The Committee is encouraged by the enactment of new legislation in April 2003. The Committee welcomes crime prevention initiatives and alternatives to judicial procedures. However, the Committee is concerned at the expanded use of adult sentences for children as young as 14; that the number of youths in custody is among the highest in the industrialized world; that keeping juvenile and adult offenders together in detention facilities continues to be legal; that public access to juvenile records is permitted and that the identity of young offenders can be made public.

In addition, the public perceptions about youth crime are said to be inaccurate and based on media stereotypes.

The Committee recommends that the State party continue its efforts to establish a system of juvenile justice that fully integrates into its legislation, policies and practice the provisions and principles of the Convention, in particular articles 3, 37, 40 and 39, and other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty and the Vienna Guidelines for Action on Children in the Criminal Justice System. In particular, the Committee urges the State party:

(a) To ensure that no person under 18 is tried as an adult, irrespective of the circumstances or the gravity of his/her offence;

(b) To ensure that the views of the children concerned are adequately heard and respected in all court cases;

(c) To ensure that the privacy of all children in conflict with the law is fully protected in line with article 40, paragraph 2 (b) (vii) of the Convention;

(d) To take the necessary measures (e.g. non-custodial alternatives and conditional release) to reduce considerably the number of children in detention and ensure that detention is only used as a measure of last resort and for the shortest possible period of time, and that children are always separated from adults in detention.[206]

Kearney Healy told the Committee why he feels that the numbers are so high in Saskatchewan:

[W]e tend to use control rather than development as a response to young people in trouble... [M]any children are in extreme difficulty because of not knowing their parents, high rates of suicide, et cetera. They are marginalized in so many different ways and, rather than responding to those needs, we have simply controlled them.[207]

This inability to respond to the needs of youth in conflict with the law was forcefully reiterated by Bill Thibodeau of EGADZ, a Saskatoon youth centre:

I was at a meeting yesterday with a 17-year-old male who got into a pretty serious fight four years ago; it was a fist fight, there were no weapons involved. For the past four years, no school has been willing to take him. Finally, yesterday a school said they would take him but only for one hour a week. That is just stupid. How do you engage that kid, how do you tell him there is something more for him? He will soon be 18 and unless he really has some hope for the future he will “join up” and become one of the next gang members. He will be one of these kids that everyone says, “well, we tried and we tried and he just did not seem to catch on.”[208]

Certainly, reluctance among officials dealing with youth in conflict with the law to effectively promote the use of alternative or rehabilitative measures appeared to be an issue of significant concern not just in Saskatchewan, but in Canada more broadly.

Our Committee believes that there is an urgent need for governments across Canada to reconsider their approaches to youth criminal justice and detention issues in order to rectify Canada’s undesirable position among those developed countries with high youth detention rates, so that Canada lives up to the purpose and objectives of the Convention on the Rights of the Child.

Our Committee notes that the use of alternative measures is not enough. Children that come into conflict with the law often do so because of a series of other problems and experiences that begin much earlier in their lives. As noted in a Save the Children report, without addressing the challenges that lead children to come into conflict with the law in the first place, the criminalization of children often increases their marginalization and vulnerability.[209] In order to live up to our obligations and effectively combat the high levels of youth detention, governments should implement more effective problem identification and intervention strategies earlier on. If children with special needs or those who have been involved in the child welfare system often end up in conflict with the law, the solutions needs to begin while they are in contact with health professionals or child welfare authorities. Dealing with the problem too late will never be as effective as early intervention in children’s lives. The problem does not necessarily reside with the juvenile justice system, but with society’s approach to children as a whole. By looking more closely at the larger problems, the federal government will be better able to determine more effective means of addressing the underlying causes of youth crime, and of supporting youth in conflict with the law within their families and community, providing them with enhanced tools to make better choices in their lives.

In terms of alternative measures, the federal government needs to work proactively with the provinces and territories to ensure that alternative measures are effectively implemented for youth in conflict with the law. Restorative justice measures that focus on the offender’s accountability to the victim, integration of the offender, and the restoration of harmony in the larger community, are important means of achieving this goal. As article 37 insists, detention must be used only for the most serious crimes.[210] The UN Study on Violence Against Children notes that “[d]etention should be reserved for child offenders who are assessed as posing a real danger to others…”[211] Otto Driedger of the University of Regina insisted that in order to come into compliance with the Convention, restorative justice models were imperative – “not as an absolute alternative but as a parallel initiative, that will assist us to have a less polarized approach. But it will be a long process.”[212]

The Saskatchewan government has adopted a number of alternative measures to deal with that province’s high rates of youth crime and detention. Many of these measures could be used as an example for the rest of the country. For example, in a brief submitted to our Committee, Betty Ann Pottruff told us about educational programs for young offenders, and the use of special courts for drug treatment and family violence. She also told us of Saskatchewan’s increasing reliance on police discretion in charging, diversion programs, non-court processes, and the referral of more youth to health services for assessment and treatment. She told us about special programs targeted specifically towards prevalent youth offences, such as auto theft. The auto theft program involves a combination of monitoring and custody, education and alternative measures for first-time offenders, and has resulted in a 44.1% reduction in auto theft in Regina. In addition, Bill Thibodeau told our Committee of programs being implemented in Saskatchewan to get youth – “described by the police and the prosecutor as the worst that Saskatoon has to offer”[213] – interested in particular activities. He told us that youth in conflict with the law get involved with such programs and become

transformed and, indeed, become someone very powerful who takes a real interest in our community and would be willing to give up much of their free time and energy in order to make this a better community.

That did not happen through supervision; it happened through the excitement that they could make that transition from youth to successful adult. Rather than being the kid at the back of the room that no one likes, they can be at the front of the room saying, “come on you people, we can make a better world.” That is such a powerful process.[214]

Kearney Healy provided our Committee with another promising proposal for dealing with children in conflict with the law, suggesting “wrap-around committees” in which a youth in conflict with the law could work with a social worker, a teacher, a justice worker, and individuals from his or her family to find solutions within that child’s life.

C. CONDITIONS IN DETENTION

With reference to conditions within detention facilities, a number of witnesses criticized Canada’s reservation to article 37(c) and the occasional housing of youth with adult offenders. Rather than focussing on exceptions when in the best interest of the child, Susan Reid of the Centre for Research on Youth at Risk, at St. Thomas University in Fredericton, told the Committee that youth are sometimes housed with adult offenders as a pragmatic solution to deal with overflow or empty beds, or in places such as remote northern communities, where it is often difficult or impractical to construct multiple facilities for such a small population. The Committee on the Rights of the Child continues to criticize Canada’s reservation, regretting the “rather slow process” in the government’s efforts towards removal. The UN Committee has commented that interpretation of a child’s best interests does not include convenience of the State Party.

Ultimately, the concern with respect to housing young offenders with adults revolves around the need to protect children from exploitation and abuse, and the negative influences of adult offenders. The UN Committee’s General Comment on juvenile justice states that “[t]here is abundant evidence that the placement of children in adult prisons or jails compromises their basic safety, well-being, and their future ability to remain free of crime and to integrate.”[215] Even custodians in adult facilities are a cause for concern, as they are often trained to deal with more hardened adult offenders. Advocates argue that children should be housed separately in order to ensure that the facilities where they are housed are able to respond to their special needs.[216]

In a similar vein, Judy Finlay, Ontario’s Child Advocate, and Peter Leuprecht, of the Université du Quebec à Montréal, brought to the Committee’s attention the overlap between young offenders and children in need of protection housed in the same facilities: “in certain rehabilitation centres, there is a mixed clientele of young offenders, young accuseds and youths in protection sentenced to closed custody.”[217]

The same concerns about the negative influences on children housed with adults arise with respect to children involved in the child welfare system who are in close contact with young offenders. As noted by Professor Leuprecht, “Although the Quebec Human Rights Commission has found that this mixed arrangement is illegal, it nevertheless continues.”[218] Ms. Finlay pointed out the profound impact that such overlap can have on particularly marginalized communities of children, such as Aboriginal children.

The Committee also heard about instances in which female young offenders are housed in the same living units as boys. Asia Czapska of Justice for Girls told us about youth prisons in Prince George and Victoria, British Columbia, where this is “regular practice.”[219] She told us that the provincial government has defended these measures on grounds similar to those used for housing youth with adults – because there are so few female young offenders, girls housed separately would be effectively in isolation, and there are not enough detention units to practically divide girls and boys. However, Ms. Czapska told the Committee that female offenders housed with males are frequently subject to sexual harassment and sexual assault in these British Columbia custody centres.

Professor Leuprecht also noted that the conditions within some detention centres violate a number of children’s rights and may sometimes qualify as inhuman and degrading treatment:

[T]he conditions in which young people are detained violates a series of fundamental rights recognized by provincial, federal and international jurisdictions. More particularly, segregation and removal measures are imposed in a highly debatable manner that can at least be characterized as inhuman and degrading treatment. Furthermore, force is frequently used by supervisors. In Quebec, the Commission des droits de la personne et des droits de la jeunesse has conducted numerous investigations whose findings are distressing.[220]

Based on this testimony, our Committee has concluded that Canada is in clear violation of its obligations under section 37. Canada’s reservation to this provision only facilitates its non-compliance. As such, the federal government should withdraw its reservation to article 37 of the Convention and take concrete measures to work with the provinces and territories to ensure that youth are no longer detained with adults, and males no longer detained with female young offenders. The Convention already provides for exceptions based on the best interests of the child – this would include the situation of a young offender who is soon to turn 18 and will shortly have to be moved to another facility, as well the case of young offenders who may be a danger to the other children with whom they are detained. Governments across Canada persist in allowing pragmatic concerns based on cost to take precedence over the best interests of the child. There are often other practical solutions to such pragmatic problems: the federal government needs to work with the provinces and territories to find them.

RECOMMENDATION 8

Pursuant to articles 37 and 40 of the Convention on the Rights of the Child, the Committee recommends that the federal government:

A. INTRODUCTION

A number of provisions in the Convention on the Rights of the Child deal with issues of child protection and welfare. In particular, they touch on situations where a child may have to be separated from his or her parents. Article 9 lays out the general framework of what measures must be in place before such separation can occur:

Art. 9(1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

(2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

(4) Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 12 emphasizes the child’s right to express his or her views during such proceedings:

Articles 19 and 20 highlight the state’s responsibility to intervene where it is found that a child is being mistreated or abused:

Art 20(1) A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

(2) States Parties shall in accordance with their national laws ensure alternative care for such a child.

(3) Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

Finally, article 25 emphasizes the need for periodic review of any decision to separate the child from his or her parents.

Art. 25 States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.

B. THE RIGHT OF THE CHILD TO BE HEARD AND TO PARTICIPATE

During its hearings across Canada, our Committee heard that many children and youth in the care of the state feel that their rights under the Convention on the Rights of the Child are being violated because their voices are not heard in proceedings and decision-making processes concerning their welfare. This is a perspective that was particularly emphasized during our hearings in Saskatchewan, as brought to our attention by Jessica McFarlane of the Saskatchewan Youth in Care and Custody Network, and Marv Bernstein, Saskatchewan’s Children’s Advocate. In a brief, Mr. Bernstein told us that a number of “vulnerable and disempowered young persons feel their voices given inadequate consideration within the court process.”[221]

He told us that, “unlike any other provincial or territorial child protection statute in Canada, Saskatchewan’s Child and Family Services Act explicitly prohibits a child from being treated as a party to, and participating directly in, a child protection proceeding, regardless of age.”[222] He said that Saskatchewan’s laws do not respect articles 9 and 12 of the Convention, which requires States Parties to recognize that a child is entitled to separate legal representation during child protection proceedings where it is in the child’s best interests, where doing so would allow the child’s best interests to be expressed, where the child has the capacity to instruct counsel, or where a child’s specific interests differ from those of the parent or state. For example, whereas Ontario’s Child and Family Services Act[223] creates an independent role for a child’s counsel in judicial and administrative child welfare proceedings, section 29(2) of Saskatchewan’s Child and Family Services Act[224] denies children the right to be a party to such proceedings. Section 4 may allow the child’s wishes to be taken into account where practicable, having regard to the child’s age and development, but the Act does not allow an individual to act in the child’s best interests, and allows for the possibility that a child’s views might not be heard because of logistics or reasons of convenience rather than because of the child’s inability to communicate his or her views. Mr. Bernstein told our Committee that the Saskatchewan legislation overemphasizes “the interests of the parents – failing to see children as separate individuals who have individual interests and needs.”[225]

While our Committee recognizes that child protection is an issue of primarily provincial jurisdiction, these are issue of compliance and implementation of the Convention on the Rights of the Child. We cannot recommend that the provinces make changes to their child protection legislation or policies; however, we can suggest that the provinces and territories place increased emphasis on real implementation of the Convention rights with respect to child welfare issues. In this regard, governments across Canada need to examine their legislation with respect to the child’s right to be heard. In his brief to the Committee, Marv Bernstein argued that provinces should work to create strong legislation to ensure that the child has the right to be heard, rather than inviting such participation only in certain circumstances. Jessica McFarlane’s brief also suggested that children be allowed to participate or to provide input into the construction of their plan of care (dealing with their schooling, group or foster home placement, involvement of a social worker, etc.). Service provision works best when it takes into account the particular needs of children in and leaving care, whether it be counselling, a home, or proper medical treatment. Identification of these different needs is essential to creating a responsive child protection system that operates on behalf of children, rather than parents or the state. Our Committee suggests that provincial and territorial governments look seriously at the need to foster young persons’ input into the child protection process. In order to comply with the Convention on the Rights of the Child their voices need to be heard, and their wishes and best interests at the very least considered. Children can recognize their responsibilities within the child protection system only if they feel that they have ownership over their own lives.

C. ISSUES OF TRANSIENCE

Jessica McFarlane also told the Committee of problems of transience for children in the care of the state. Moving from home to home is a common occurrence for such children; finding a position of permanence within one family often takes time or never happens at all. In a brief submitted to the Committee, as well as in her oral submissions, Ms. McFarlane told us that transience can lead to longer-term psychological damage for children in care. Without stability and permanent personal relationships, such children are less able to trust others. Perceived cycles of rejection followed by acceptance and then again by rejection mean that such children find it hard to form the secure personal attachments that are important to creating a stable lifestyle. Research shows that children who constantly move from home to home have a harder time staying in school and more difficulty adjusting when they leave the child welfare system. For children in care who are already marginalized and vulnerable – for example, Aboriginal children, who are significantly overrepresented in the child welfare system – such longer-term consequences of transience can be disastrous.

Our Committee consequently calls on provincial and territorial governments to consider the possibility of working towards a uniformly legislated age of 18 for cut-off from protection in order to comply with the definition of a child as established in the Convention on the Rights of the Child. Children are increasingly mobile in today’s world – now, more than ever, cut-off ages should be standardized in order to ensure adequate protection for vulnerable children.

D. A UNIFORM AGE FOR PROTECTION

During our hearings across Canada, the Committee was also repeatedly reminded of the lack of a uniform age for child protection in Canada. Child protection is an area of exclusively provincial jurisdiction, and provinces have established varying ages at which they consider a child is independent and no longer in need of protection by the state. Peter Dudding of the Child Welfare League of Canada, and Jahanshah Assadi of the UN High Commissioner for Refugees in Canada, gave us the example of British Columbia, where youth receive some form of protection under child welfare legislation until the age of 19, while in Ontario the cut-off age is 16. They pointed out that these differences have meant that service providers dealing with migrant children who arrive in Canada without their parents apply different standards in two of the prime destinations for immigration in Canada; in Ontario, they are unable to refer separated children to child protection authorities if the child is over 16.

Other witnesses noted discrepancies in some provinces between the age at which a child is considered independent and the age until which he or she must remain in school. As stated by Susan Reid of the Centre for Research on Youth at Risk at St. Thomas University:

The other thing that is quite interesting about New Brunswick is that there was a push in the Education Act to raise the school leaving age, and they increased it from 16 to 18. You could, in theory, have 16- and 17-year-olds without a home who are required to go to school.[226]

Jessica McFarlane echoed this point, noting that in addition to varying cut-off ages, there are also varying levels of support provided to youth leaving the child protection system. She pointed out that, in some provinces, children who reach the cut-off age in the middle of the school year may suddenly be deprived of all supports and services, leaving them stranded at a place and time in life where they may already feel significantly marginalized and vulnerable. The legislation may effectively strip them of a support system when it is most needed.

In order to bring Canada into full compliance with its obligations under the Convention on the Rights of the Child, our Committee feels strongly that provincial and territorial governments should carefully examine the need for after-care support, and the need to assist children leaving the protection system with developing a financial plan and ensuring that they are already in contact with the support services that they may need when they are on their own.

Statistics show that children are particularly vulnerable to risks of assault, sexual abuse, physical abuse and neglect, often perpetrated by individuals whom the child knows and trusts.[227] Providing an effective protection system to encompass these children is the first step towards ensuring their health and well-being and living up to obligations under the Convention.

RECOMMENDATION 9

Pursuant to articles 9, 12, 19, 20, and 25 of the Convention on the Rights of the Child, the Committee recommends that the federal government organize federal- provincial-territorial consultations with respect to child protection issues and children in the care of the state. These consultations should look focus on whether the Convention has been implemented in the following areas:

· The need to involve youth more fully in the child protection process;

· Working towards a uniformly legislated age of 18 for cut-off from protection; and

· The need for continuing support for youth exiting the child protection system.

A. INTRODUCTION

A number of articles in the Convention on the Rights of the Child deal with adoption and the consequent obligations of parents and legal guardians. Other articles address the child’s right to an identity – which, for many people, is associated with knowledge of one’s biological parents. During several of our Committee’s hearings, discussions surrounding adoption and donor offspring also led to considerations of identity.[228]

B. ARTICLES 5, 18, 20, AND 21: ADOPTION

Articles 5 and 18(1) deal with the state’s obligation to respect the rights and responsibilities of parents and guardians in bringing up a child.

Art. 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Art. 18(1) States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

Articles 20 and 21 deal specifically with a state’s obligations with respect to adoption.

Art. 20(1) A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

(2) States Parties shall in accordance with their national laws ensure alternative care for such a child.

Art. 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

(b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;

(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

During our hearings, the Committee learned of the vast number of children awaiting adoption in Canada. According to a survey conducted by the Adoption Council of Canada, there are an estimated 76,000 children in the care of provincial, territorial and First Nations agencies across Canada. Over 22,000 children await adoption, while fewer than 1,700 children are adopted annually across the country. Elspeth Ross of the Adoption Council of Canada told our Committee that more children are adopted abroad and brought into Canada than are adopted within Canada. More than half of the children awaiting adoption in Canada are Aboriginal.[229] Our Committee must conclude that there is an adoption crisis in Canada and that solutions need to be found to bring this situation into line with our obligations under the Convention.

Like child protection, adoption is an area of provincial jurisdiction. There is no uniform standard across the country – among other things, while some provinces and territories require homestudies before a child can be placed with a family, others do not; some provinces and territories also require counselling to be provided to birth parents while others do not.[230] Elspeth Ross told our Committee that British Columbia, Alberta, New Brunswick and Ontario are making significant efforts to find adoptive homes for children, while Quebec is also taking steps to amend its legislation. However, initiatives are not nationally coordinated, and the numbers of unadopted children remain high.

In its Concluding Observations, the UN Committee on the Rights of the Child made some general observations about adoption policy and legislation in Canada:

The Committee is encouraged by the priority accorded by the State party to promoting the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption of 1993 in Canada and abroad. However, the Committee notes that while adoption falls within the jurisdiction of the provinces and territories, the ratification of the Hague Convention has not been followed up by legal and other appropriate measures in all provinces. The Committee is also concerned that certain provinces do not recognize the right of an adopted child to know, as far as possible, her/his biological parents (art. 7).

The Committee recommends that the State party consider amending its legislation to ensure that information about the date and place of birth of adopted children and their biological parents are preserved and made available to these children. Furthermore, the Committee recommends that the Federal Government ensure the full implementation of The Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption of 1993 throughout its territory.[231]

Our Committee recognizes that these are issues of provincial jurisdiction. We wish, however, to echo the recommendations of Elspeth Ross, who suggested that the federal government could bring itself into line with the Convention on the Rights of the Child and ameliorate the situation of thousands of children awaiting adoption by providing more funding to promote the placement of Canadian children in permanent homes and to provide support services aimed at keeping children within their natural families. Ms. Ross also suggested that governments across Canada promote and encourage other forms of adoption, such as open adoptions (in which the adopted child is encouraged to develop a relationship with his or her birth family), guardianship arrangements, and kinship care, in order to ensure safe and caring homes for some of Canada’s most vulnerable children. The federal government could enter into discussions with its provincial and territorial counterparts to discuss the potential for such arrangements.

RECOMMENDATION 10

· Increasing federal funding to promote the placement of children in permanent homes and to provide support services aimed at keeping children within their families;

· Streamlining the adoption process; and

· Reviewing Canada’s adherence to the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption.

C. ARTICLES 7 AND 8: IDENTITY

Articles 7 and 8 of the Convention on the Rights of the Child deal with issues of the child’s right to an identity. They touch on the obligation of the state and parents to register the child immediately after birth, as well as the right of the child to a name and nationality, and to know his or her parents.

Art. 7(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

(2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Art. 8(1) States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

(2) Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

1. Adopted Children and Children of Anonymous Donors

Witnesses told our Committee that currently in Canada, only Alberta, Newfoundland, the Northwest Territories, and British Columbia allow adopted children access to their biological parents’ identity (similar legislation received Royal Assent in Ontario in November 2005, although it has yet to fully come into force). Of those jurisdictions, only the Northwest Territories allows unrestricted access – that is, only parents in the Northwest Territories may not veto the disclosure of their identity to a child. This problem was noted by the Committee on the Rights of the Child in its Concluding Observations: “The Committee is also concerned that certain provinces do not recognize the right of an adopted child to know, as far as possible, her/his biological parents (art. 7).”[232]

Yet Canada’s obligations do not end with adopted children. Margaret Somerville of McGill University told our Committee that the rise in new forms of assisted reproductive technology is having a significant impact on children across Canada today, and may have an even larger impact into the future. And yet, she argues that the policies and legislation in place to deal with children born through assisted reproductive technology do not take children’s best interests adequately into account. Governments and policy-makers are not looking at this issue from the child’s perspective.

With regard to donor offspring, Barry Stevens of the Alliance of People Produced by Assisted Reproductive Technology told our Committee that the federal Assisted Human Reproduction Act[233] – which prohibits activities such as human cloning, places controls over research involving the in vitro embryo, and is intended to protect the health and safety of Canadians who use, or are born from the use of, assisted human reproduction – does not allow for identification of a sperm donor. This Act states that the health and well-being of children born through assisted reproductive technology must be given priority in all decisions respecting use of such technologies, but it does not allow such children access to knowledge of their biological parent; in fact, anyone found to be disseminating such information may be subject to a criminal charge. The child is entitled only to a snapshot of the donor’s health at the time of the donation.

Our Committee was informed that this lack of access to a biological parent’s identity can lead to a number of problems for children, including health concerns, dilemmas involving consanguinity, and issues relating to the child’s sense of identity. Barry Stevens emphasized that a child’s need to know about a parent’s health history is fundamentally important to his or her own health. Many adopted children have no access to health histories. Even for donor offspring, a snapshot of a sperm donor’s health at birth is not sufficient – a child needs to be able to track a donor’s health history and to learn about potential hereditary diseases that may manifest themselves only later in life. Mr. Stevens argued that by denying children access to this information, our society is creating an entire class of individuals who stand at a serious health disadvantage to the rest of the population.

Barry Stevens also informed us that problems related to consanguinity are more common among donor offspring than one might expect. It is not uncommon for one single sperm donor to have dozens of children. Children of the same donor often grow up in the same community and may marry or have children together later in life. He stated:

The less one knows about the donor, the more likely it is that one might meet and marry someone who is his or her half-sibling or even, conceivably, biological father. This may seem extremely unlikely, but remember that people do cluster in groups. Like-minded people tend to get to know each other, and sometimes they get to know each other because they have had treatment in the same place.

I know of two cases where the people’s children play together. Both the mothers and children do not know but I actually do know — through a quirk of fate — that the mothers have the same donor. This situation is partly taken care of in the new act by the fact that if a person contacts the clinic, they will tell that person whether he or she is about to marry his or her half-sibling.[234]

With respect to the child’s need for an “identity,” this need may not be as scientifically grounded as health or consanguinity concerns, but it is a very significant part of a child’s emotional well-being and rights. As stated by Barry Stevens:

I would also argue strongly that to know who you come from is a very fundamental human need… It is true for every organism; a one-celled organism can recognize its kin. It is one of the most basic mechanisms, if you like, that living beings have. Throughout our culture, the stories from Oedipus to Star Wars, the theme of finding one’s father, for better or for worse, are there. To know our genealogy, not just as a hobby, but as a visceral and real thing, is significant to understanding who we are. We turn our back on our entire history and our development, our biology, rather arrogantly and at peril.[235]

2. Children of Same-Sex Parents

Fiona Kelly, a PhD candidate at the University of British Columbia, told us about the situation of donor offspring born to same-sex parents. (This is not necessarily a situation of anonymous sperm donation; it may involve an identified male who has accepted to become a donor in order to allow a lesbian couple to have a child.) Using the example of lesbian parents, currently, a child born of donor insemination to same-sex parents will typically have the male donor’s name put on the birth registration papers. As such, the male donor is the child’s legal father. While the lesbian partner who bears the child is included as the legal mother on the birth registration papers, in many provinces the other mother/parent is entirely excluded from this legal relationship with the child.

Legal approaches to this issue vary by province: in some cases, where the donor is anonymous, the names of both mothers may appear on the birth certificate;[236] in others, the non-biological mother has absolutely no legal relationship to the child. The non-biological mother may choose to legally adopt the child in order to solve this problem; however, the adoption process can take at least six months in most provinces and often involves application fees of several thousands of dollars.

Fiona Kelly told our Committee that:

Canada is currently failing these children. They remain legally vulnerable at the same time that identically situated children who are born through donor insemination to heterosexual couples are legally protected. In other words, Canadian law currently denies th