THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
First Session, Thirty-eighth Parliament, 2004-05
Hearings: OTTAWA, Monday, April 18, 2005 4 p.m. - Issue No. 10 - Eighth meeting on:
Examine and report upon Canadas obligations in regards to the rights
and freedoms of children.
MEMBERS OF THE COMMITTEE
The Honourable A. Raynell Andreychuk, Chair
The Honourable Landon Pearson, Deputy Chair
The Honourable Senators:
*Austin, P.C., (or Rompkey, P.C.), Baker, P.C., Carstairs, P.C., Ferretti Barth, *Kinsella, (or Stratton),
LeBreton, Losier-Cool, Oliver, Poy
*Ex officio members
Changes in membership of the committee:
Pursuant to rule 85(4), membership of the committee was amended as follows:
The name of the Honourable Senator Ppin, substituted for that of the Honourable Senator Baker, P.C. (April 12,
The name of the Honourable Senator Baker, P.C., substituted for that of the Honourable Senator Ppin (April 14,
Department of Canadian Heritage:
Eileen Sarkar, Assistant Deputy Minister; Kristina Namiesniowski,
Director General, Multiculturalism and Human Rights Branch; Calie McPhee, Manager,
Human Rights Program.
Justice for Children and Youth: Sheryl Milne, Staff Counsel; Martha
Mackinnon, Executive Director.
OTTAWA, Monday, April 18, 2005
The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to examine and report upon Canada's
international obligations in regard to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
The Chairman: Honourable senators, we have heard from a number of ministers and other witnesses about
the Convention on the Rights of the Child. However, our study is not limited to the scope of the Convention on
the Rights of the Child, we will also consider ways and means that will assist the public service, the
government and parliamentarians to meet the obligations that we have undertaken respecting children.
Today we have witnesses from the Department of Canadian Heritage, the Assistant Deputy Minister, Ms. Sarkar,
and her colleagues. Minister Frulla was to attend, but was unable to do so. There will be value in hearing from
the representatives of the ministry today as they have the overall responsibility for this area in the
Department of Canadian Heritage. The minister will be available at a later date.
Ms. Eileen Sarkar, Assistant Deputy Minister, Department of Canadian Heritage:
Madam Chair, on behalf of the Minister of Canadian Heritage, I would like to begin by thanking all the members
of the committee for the time and energy you are devoting to human rights, particularly the rights of children,
which are so fundamental to our society.
The Department of Canadian Heritage Act states that the Department is responsible for the promotion of a
greater understanding of human rights, fundamental freedoms and related values.
As Assistant Deputy Minister, I am responsible for the Citizenship and Heritage Sector, which includes the
Human Rights Program.
With me today, I would like to introduce Kristina Namiesniowski, Director General of the Multiculturalism and
Human Rights Branch and Calie McPhee, Manager of the Human Rights Program. I would also like to note the
presence of Christine Nassrallah, Director, Policy, Research and Human Rights, and Liane Venasse from the Human
The implementation of human rights is about building, as you would know, a culture of respect, a culture of
The Department of Canadian Heritage works to promote all aspects of Canadian identity, including the
democratic values we all share.
Human rights is a cross-cutting issue that touches on a wide variety of areas. Effective human rights
implementation is not the domain of any one department, nor of any one government, it is the responsibility of
all departments and all governments.
In Canada, treaties are implemented by a wide variety of stakeholders and through various means such as
constitutional protections, statutes, administrative measures, social policies and programs.
As you know, and you have already heard from Minister Cotler, the Department of Justice plays the key role in
ensuring that federal legislation and policy initiatives respect our human rights obligations. On the diplomatic
front, the Department of Foreign Affairs steers our international efforts to advance the cause of human rights.
Many other departments and agencies, such as Social Development Canada, CIDA and the Public Health Agency also
play a major role in developing policies and programs that further human rights, including children's rights.
In order for respect for human rights to remain an inherent part of Canadian culture, it is important that
federal, provincial and territorial governments, as well as civil society, work closely together to ensure that
every citizen is treated equally and with dignity, regardless of his or her age, ability, race, origins or
The human rights program focuses its efforts on governmental and intergovernmental coordination and the
promotion of human rights in Canada.
I will now talk about the coordinating role. The program coordinates consultations, both across the federal
government and with the provinces and territories, on issues related to the implementation of international
human rights treaties, including the Convention on the Rights of the Child.
At the federal level, we have actively strengthened this role. For example, in January 2004, we initiated a
new interdepartmental process to enhance dialogue across federal departments involved in implementing human
rights treaties in Canada. This committee is looking at various issues such as the role of non-governmental
organizations in monitoring and strengthening federal measures to ensure follow-up to UN committee's
With regards to the Convention on the Rights of the Child, we also established last year a new mechanism to
ensure ongoing consideration of the treaty obligations through interdepartmental discussions of the UN
After the committee issues its recommendations, we do the necessary follow-up with relevant departments to
assess the progress achieved in considering the recommendations. Our role is to organize annual meetings to
ensure that the views of the UN committees are given appropriate consideration. We are applying this new
approach to all treaties.
We also continue to work closely with our provincial and territorial partners on the Continuing Committee of
Officials on Human Rights.
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, including the
Convention on the Rights of the Child.
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.
We hold monthly telephone conferences with members of the committee in addition to biannual meetings.
Finally, we also regularly report to the provinces and territories on the work of your committee.
I will speak a little about reporting to the United Nations. Our role as coordinator on human rights issues
is of course intrinsically associated with the preparation of reports to the United Nations. I know that you
have heard about those from other witnesses who have come before you.
The human rights program is responsible for preparing Canada's reports concerning the six international
treaties that deal with human rights.
In the case of the Convention on the Rights of the Child, the federal section of the report is prepared by
the Departments of Justice and Health. However, the human rights program provides guidelines and advice to other
federal departments and to provincial and territorial government to guide their submissions. The program reviews
all submissions, negotiates revisions, and ensures publication and distribution of all reports in both official
Since October of 2004, Canada is now up to date with its reports. This is not a small thing, given that, in
2004 alone, we submitted no fewer than five reports to the United Nations. We achieved this result by making
significant improvements to the process. Our reports now focus on the key issues raised by the United Nations in
its most recent recommendations and on the progress achieved since. Emphasis is also being placed on reporting
We determined the key issues that the reports should address through an analysis of the UN recommendations
and through close collaboration with our federal, provincial and territorial partners. We also wrote to
non-governmental organizations, providing the list of issues we intend to cover and invited them to share their
views on whether these are the priorities. We can do better in terms of our preparations with the NGOs, and we
can talk more about that.
Our last two reports were submitted within more reasonable time frames, and we will be closely monitoring the
results of the new approach that I just described and make other changes that may be necessary.
We are also involved in promoting children's rightsto Canadians. The Human Rights Program invests closeto
$400,000 a year to support projects put forward bynon-governmental organizations and educational institutions to
promote human rights.
The rights of children are central to these efforts. Since 1997, in collaboration with other federal
departments and agencies, we have supported over 60 projects specifically emphasizing the rights of young people
and children. We have encouraged the establishment of workshops on children's rights for the various groups and
officials. We have helped to develop instructional materials that have been distributed in Canada's elementary
and secondary schools. We have also enabled Aboriginal youth to take part in workshops on human rights and the
struggle against racism.
To give you a better idea of our efforts, we will leave a summary of some projects that have recently been
supported by the Human Rights Program.
The program also contributes to the implementation of article 42 of the Convention on the Rights of the
Child, through other activities that raise public awareness as well.
We ensure that the convention, Canada's reports, and the recommendations of the UN committees are available
on our website. In addition, we see to it that our reports are distributed to NGOs and are available in numerous
libraries. We added a page to our website that is devoted to the theme of children's rights, as well as many
links to other sources of information.
Every year, we distribute over 50,000 copies of the Canadian Charter of Rights and Freedoms, mostly to
schools. Every year, 4,000 copies of the Convention on the Rights of the Child are sent to Canadians on their
request. There are other aspects of the Department's work that also help to advance respect for human rights. I
would like to take this opportunity to highlight that the Multiculturalism Program recently launched the Action
Plan Against Racism, a government-wide action plan which will directly contribute to the promotion of human
rights in Canada.
In fact, one of the key priority areas for action is to make children and young people aware of diversity and
of the importance of stopping racism. We will continue our efforts to promote the rights of children and we look
forward to the result of your study.
I thank you for your attention, and I will be happy to answer your questions.
Senator Pearson: I welcome you all here. I have worked with a number of you for a long time on a
number of different issues. I know the challenge of the mechanisms, particularly the federal-provincial
discussions and others that you have described.
Would you elaborate on a couple of issues that pre-occupy me? One is the issue of the promotion of the
convention. We have the obligation under article 40-something to promote the convention widely to everyone,
including children. You have described some of your programs.
Senator Carstairs, who does a significant amount of teaching of children in Encounters with Canada, would
probably empathize with my next comment. When I ask youngpeople from across the country, who come into the
Senate, perhaps 120 to 130 of them, aged between 13 and 17, how many know about the convention, at the most, I
will get a show of four hands. Wherever I go, when I speak with young people, I find the same result. We have
failed in this area. I am not quite sure why that is so or how to remedy the situation. Your resources might
require to be somewhat augmented. Young people all know about the Charter of Rights and Freedoms, so you have
succeeded in that area. However, most are unaware of the convention. When I mention it to them, they are amazed,
interested and they ask many questions. We have a long way to go in that area. That is the subject of my first
My second question relates to having taken part in the preparation of our last report and having led the
delegation when we went to Geneva. We are anxious to hear any suggestions that you may have that we could then
build into our recommendations about how to facilitate the process.
As you know our next report is due in 2009. I presume we have to begin our preparations for that report in
2006. From my experience, it takes at least three years to complete the process. This time we have the added
responsibility that cabinet assigned, and that is reporting on the implementation of our national plan of action
Have you already started to think about how you will complete that process? Would any recommendations we
might make assist you?
Ms. Sarkar: In response to the first question, I will look to my colleague to help me out. We are
aware of the lack of awareness of children. Enough years have passed that the awareness should be there.
We decided to contribute to a survey of youth being conducted by the War Child Canada on global issues,
including human rights. We specifically requested that youth be canvassed on awareness and the importance of the
Convention on the Rights of the Child and human rights treaties in order to establish baseline data that can
inform us and measure future directions for our program and see where the awareness is, where it is not, and how
we can build on it. Increasing awareness of the convention remains a key funding priority of our human rights
As to the preparation of our next report, the report of this Senate committee will be extremely helpful to
us. You have been looking in depth at this issue over the past many months. The report will be valuable input
because it will be based on the testimony you have heard from many witnesses and you will have formed your own
I would ask my colleague, Ms. McPhee, to deal with the actual process we are following.
Ms. Calie McPhee, Manager, Human Rights Program, Department of Canadian
Heritage: Honourable senators, first, with respect to raising the awareness of the convention, we will be
discussing this in more detail with our federal and provincial colleagues. We will talk about best practices,
what they have been doing, and what more can be done at all levels in order to further promote the convention.
Having human rights and children's rights, in particular, discussed at this forum definitely helps us greatly.
With respect to your question about reporting, as Ms. Sarkar mentioned, we have an ongoing federal
interdepartmental process that each year examines the recommendations in detail and examines what our department
is doing. We have implemented similar processes across the board. That means we have already begun to prepare an
outline of the next report.
However, it will be another year or two before we officially start the preparation of the next report. The
timeline for producing our reports has been cut substantially. We have also recognized the need to begin these
reports much earlier. Officially, we begin them now, nine to twelve months in advance of expecting to report. We
are also implementing a process by which we hope to identify specific indicators, using the recommendations of
the UN committees as the guide, that is, what topics need to be examined and priorities for Canada in general.
Senator Pearson: Are you thinking about involving children?
Ms. McPhee: Along the lines of the role of the NGOs that Ms. Sarkar mentioned, we do want to explore
further how to reach youth and obtain their views on what issues need to be covered in our reports and what the
priorities should be for Canada. This is an area that we will be discussing more fully.
The public health agency has a centre with expertise on consulting children, and we will be meeting with
them. They have already offered their assistance.
Senator Carstairs: Perhaps, when you are sending out thousands of copies of the Charter for classes
examining Charter issues, you would include one copy of the convention, so that at least the teacher will have
As to the specifics, when Max Yalden, a former commissioner with the United Nations, appeared before this
committee, he indicated that he thought that Canada's current reporting process was not the way to go about
this, and that we should take the responsibility from Canadian Heritage and give it to Foreign Affairs. What
would be your reaction to that comment?
Ms. Sarkar: That is a trick question, is not it? Thank you for your suggestion about sending out a
copy of the convention with the Charter. We will look into the feasibility of that.
Should Foreign Affairs be responsible? That is a question that I would not only refer to my minister, but
also probably to the Prime Minister. It is a machinery-of-government issue. We are happy to help. We feel that
the promotion of human rights fits very well within our department because our department is about heritage,
identity and culture. I am happy to make those links when I deal with multiculturalism and Aboriginalism, that
is to say that this is all part of the Canadian identity. I do not want to waste your time by telling you my
views on these items.
Mr. Yalden did make a fair and accurate point and that is that we are behind in our reports. We have made a
concerted effort to be much more timely. The criticism was well deserved. If we can say that we are getting
better, perhaps he will agree that we should continue to deal with this issue.
Senator Carstairs: Let me proceed to a process question. The report was filed in 2003. The UN
committee responded frankly and said that, for a developed country, we were failing in a number of areas. One
was the existence of section 43 of our Criminal Code that allows for the corporal punishment of children. The
other was our reservation with respect to how we incarcerate young people and the apparent acceptance that it is
in order to incarcerate young people with adults. I also have a concern about incarcerating children who have
never been in trouble with the law with children who have been in serious trouble with the law. We do that in a
number of provinces.
When such recommendations come back from the United Nations, how do you engage the appropriate departments?
Obviously, the Department of Justice would have the responsibility to introduce a bill to amend section 43 of
the Criminal Code. Incarceration is a provincial issue, not a federal issue. Young people are not incarcerated
by the federal government, they are incarcerated by provincial governments.
How do you go about informing the various departments of our bad performance; and how do you go about
creating the conditions in which change might happen?
Ms. Sarkar: I am not sure my answer will satisfy you completely because we play a role of coordination
and, I hope, a role of moral suasion. As you pointed out, the accountability does rest with the other
departments. What my colleague started to describe and what I said somewhat in my opening remarks is that what
we are doing now is that we have our federal-provincial ongoing meeting of coordinators where we sit down and
wrestle with them, that is, friendly wrestling. We also have this interdepartmental higher level committee that
brings together all of the departments to thrash out the questions about whether we are getting the whole
process right on human rights. We now meet a few times a year to assess what is being done regarding specific
recommendations. Clearly, telling another department what to do, is not appropriate, but we can try, as I said,
moral suasion and be a conscience.
The Chairman: You say there is an interprovincial committee. I presume that is made up of civil
servants; is that correct? My understanding is that there was supposed to be a ministerial group. When this
committee was set up there was to be a minister from each province and a federal minister assigned to look at
the implementation of these human rights committees. Below that, there was to be this interprovincial or
federal-provincial committee. Perhaps you could give me the correct name.
Can you tell me how often at the bureaucratic level you meet? Do you share any formal reports with ministers
or others? When have the ministers met? When this committee first started its examination of this subject, we
had representatives of the Department of Canadian Heritage before us, and we were told that the ministers have
not come together for some nine years. Have they met since the last time your department was here?
Ms. Sarkar: Let me start with the title of the committee. It is call the Continuing Committee of
Officials on Human Rights. The committee meets twice a year and is chaired by a director general from our
department. I believe that the members of the provinces and territories are senior advisors.
No, a ministerial meeting has not taken place since we last appeared here. Your comments were taken into
account, and I believe at the last meeting of the committee there was some discussion of the possibility of
proposing to ministers a ministerial-level meeting in 2006.
Senator Poy: Ms. Sarkar, you mentioned that your department prepares materials for schools. Would that
include books for young children to let them know their rights? Since education is a provincial responsibility
and not federal, how do you know that the materials you send are being used? How do you measure the success of
Ms. Sarkar: In order to respond satisfactorily, I will ask my colleagues to give more details on
exactly what we send.
Ms. McPhee: We have a variety of materials available to send to schools. Generally we do this on their
request. They are aware of much of what is available. We list the various items that are available on our
website. Those includes a wide variety of materials, including a manual, ``It is your right,'' that deals with
rights for students and teachers.
NGOs develop additional material and, as much as possible, we try to make the links and try to make sure that
students and teachers know about them. Of course, because education is the jurisdiction of the provinces, we do
not go directly to schools. However, we do use our Continuing Committee of Officials on Human Rights to let them
know what material we are producing and what is available, including the Convention on the Rights of the Child.
We put together an information package on children's rights, which included the convention, some material from
our website and the National Plan of Action for Children.
We are looking at how to maximize both what we can put on line to reach the schools and our contacts with our
We are also linked into the Human Rights Commission's Public Education Network and, as much as possible, we
are making them aware of what we have available. We can do more. We are trying to get more of this material
available as quickly as we can, and, for that reason, we created the theme site on children on our website,
which provides links to some other information sources and the NGOs who have done good work with us in
developing this material.
There may be other associations with whom we could develop more contacts, and any recommendations would be
very useful. We already work with a number of NGOs, such as Save the Children Canada and numerous others, on a
regular basis. Any suggestions you have about what more we can do and making more links would be most helpful to
Senator Poy: Do you have many requests for the material that you produce? Do you have direct links
with immigrant groups? It is important that new immigrants coming to this country know their rights.
Ms. McPhee: That is one area we could explore further. We have some links with some groups.
Ms. Kristina Namiesniowski, Director General, Multiculturalism and
Human Rights Branch, Department of Canadian Heritage: In fact, this is a topical question. Today I had a
discussion with Mr. Chan, the Minister of State for Multiculturalism, about how we can ensure that the new and
emerging communities within Canada are aware of their rights, more than just reading the words in the Charter,
but being aware of what it means to be in Canada and to practice the rights that are reflected in the Charter.
It is a very pertinent comment.
Senator Poy: In your conversation was it suggested that the Charter should be translated into some of
the other languages of the major groups of immigrants coming into this country? New immigrants do not
necessarily know English well enough to understand the written word. That applies especially to parents. I
would, therefore, make that suggestion.
Ms. Namiesniowski: The Charter has been translated into a number of languages. We are in the process
of translating the Charter in the first 32 languages most frequently spoken at home to address that issue.
Senator Poy: What other practical ways is your department promoting multiculturalism? The Canadian
Multiculturalism Act was passed a long time ago and we seem to still be struggling with it. Do you have any
Ms. Sarkar: About a month and a half ago, we held a policy conference based on some statistical
projections we had asked Statistics Canada to do on what Canada's population would look like, particularly with
respect to visible minorities, in the year 2017, which will be Canada's one hundred and fiftieth anniversary.
This was with the aim of having federal departments ask: ``If this is what the population of Canada will look
like, are we ready to serve the Canadian population?'' It covers the gamut. That is some of the
not-so-spectacular groundwork that we are doing. The emphasis of the program has also turned more towards
creating cross-cultural understanding, trying to deal with some of the fault lines that exist in Canadian
society. The recent budget announcement of an additional $5 million to our multiculturalism program, gives us a
little more money for the promotion of multiculturalism.
Senator Losier-Cool: My first question completes the questions asked by senators Pearson and Poy
concerning the promotion of the convention.
You talked about promoting multiculturalism in terms of Native affairs. Given that your department is
responsible for the linguistic duality, under the Official Languages Act, do you promote the language rights of
children in Canada?
Ms. Sarkar: That is an interesting question. Ms. Frulla is doing a lot of work in the area of official
languages promotion. We are responsible for Part VII of the Official Languages Act. Regarding children, we often
target agreements with provinces in the area of education. It is not a matter of reinforcing the rights, it is
rather an issue of funding to ensure that all eligible persons have access to schooling in their own language. I
had never made that link with the promotion of a given right. We go directly to programming that respects and
reflects the rights of eligible persons in the school system. We also have agreements with communities. We fund
communities throughout the country to support the vibrancy of official language communities in each province. Is
it a matter of rights? I often refer to the right to education. It is a question that I find quite interesting.
I don't know if my answer is adequate.
Senator Losier-Cool: I think that language rights is more that merely the right to education. It is
also the right to health care, the right to have access to legal services, to social services. All the rights
contained in the Convention on the Rights of the Child must be respected under the Official Languages Act.
Senator Carstairs has mentioned Max Yalden's testimony to the effect that it should be up to Foreign Affairs
to deal with this. We have heard other witnesses who indicated to us that perhaps Canada should create a
position of national advocate, an ombudsman for children, so to speak. Under such a scenario, do you believe
that this person, this national interlocutor, could be responsible for the coordination or even the promotion of
this file? Could we give him or her some other tasks? Indeed, what do you think of this whole idea of having a
Ms. Sarkar: I am writing down your questions and recommendations. What is interesting is that we do
have some models here in Canada in the area of ombudsmen. For example, in the area of official languages, we
have a commissioner of official languages who, in some ways, is playing the role of an ombudsman. I must say
that for official languages, we have a remarkable team. We have three ministers who have statutory
responsibilities. We have a minister responsible for official languages, Mr. Blanger, and we have a
commissioner of official languages.
As far as sharing with you my views on what should be the role of an ombudsman for the rights of children, I
am listening to you attentively, but I will not make any recommendations.
Senator LeBreton: This is a follow-up on a question by Senator Carstairs. In our briefing notes, I see
the following comment:
The Human Rights Program at Canadian Heritage acts as the permanent secretariat for the Continuing
Committee and as the main governmental information-exchange gateway between the international and domestic
human rights scenes, and among the federal, provincial and territorial governments.
I take it that is a fair statement of what you are saying. In view of that, the testimony we have had from
Mr. Yalden, and the involvement of other departments, what role, if any, do you play when it comes to Foreign
Affairs Canada and, perhaps, the Department of Finance when, as we just heard in the news these past few days,
that there has been a significant debt forgiveness program to countries that have horrendous human rights
records, including against children?
In your interdepartmental discussions, do you play some role or are you consulted? Is there any way that debt
forgiveness to these countries can be tied directly to their human rights records? In other words, if they are
serious about having these debts forgiven, can there not be some commitment by them to human rights and the
rights of children?
Ms. Sarkar: We do not have a role in that. We have a role in coordinating responses with respect to
the conventions, but that is not a role that a permanent secretariat plays.
Senator LeBreton: If we have a department of government that is the gateway between the international
and domestic human rights scene, it would only make sense that, with your expertise of the conditions that
prevail and the information and research that you do, you should somehow be involved to that type of decision.
As I was listening to your testimony, it struck me that this, perhaps, is a huge area that we are missing.
Ms. Sarkar: Thank you. I will take note of your comments.
Senator Ferretti Barth: My question follows up on the question put by my colleague Senator Poy
concerning the fact that the declaration of the rights of the child is not well known by the population at
large. You can question people in the street as to whether they are aware of the declaration of the rights of
the child, and they will tell you that they are not. It seems to me that what my colleague has suggested is
quite relevant. I work with cultural communities and, in my view, it would be useful for schools to put in place
an awareness program for parents that would include meetings and discussions in the presence of children.
Teachers, parents and children would all attend these sessions. This could have extremely beneficial effects,
because the child does not necessarily have the opportunity at home to share with his parents the information he
or she has received in the classroom about the rights of the child. If the three parties are brought together,
it all becomes possible. One should also take into account the culture of these children coming from other
countries, where children may be raised in ways that are different from ours.
It is imperative to be very much aware of and responsive to that difference and to ensure that the rights of
children whose cultural background is different from ours not be perceived as being against the values of
parents. It is a recommendation that is dear to my heart because I sometimes go through very difficult
situations within cultural communities. It is also due to ignorance.
In the same vein, could you give me some examples of activities and programs to inform and educate the public
about the rights of children? Because Canada is not only made up of Canadians, but also of multicultural groups.
Our concern is how to manage to reach everyone.
Ms. Sarkar: In fact, I do appreciate your comments and my colleague said earlier that the Minister of
State, Mr. Raymond Chan, is very much aware of the fact that we must really focus on newcomers to Canada.
Ms. Namiesniowski: We also have another small program. We have only $400,000 for this program every
year. We promote the awareness of the population with publications such as The Children's Guide. We are
always looking for projects that we could fund. We do not implement these programs, but we are funding projects
that are submitted to our program by the NGOs. We are always looking for ideas such as the one that you have
Senator Ferretti Barth: We are here to solve problems and to see what would be the best way of
ensuring services of equal quality for all in our society. We must understand that we are a multiethnic nation
and that, if we are responsible for new immigrants, we must also make them aware that it is possible to live a
quiet life in this country. It is imperative that an effort be made at school to consult with parents in the
presence of children, in order to explain to them, in very plain language, what are the rights of children. This
pamphlet, for example, no one reads it. In particular, new immigrants cannot understand it.
If I was to ask my sister or my neighbor what they have done with this pamphlet, they would tell me that they
had thrown it away. What is important is the personal contact, to be able to talk from the bottom of your heart
about your culture and what it allows you to do. This is what Canada is suggesting to do for the good of the
child. It is crucial. Please follow up on my recommendation.
Ms. Sarkar: One of the things that we could do is putting this on the agenda with our colleagues from
provinces and territories, given that education is within their jurisdiction. We could put up a pilot project in
some provinces and see whether it could work.
Senator Ferretti Barth: If you go to Montreal, I could help you out. I know almost all the schools. I
would be pleased to go together with an official to meet with these people.
The Chairman: Before we go to a second round of questions, would it be possible for the committee to
receive the contact names on the federal-provincial coordinating committee? Could we also get the contact names
of the interdepartmental level list?
Has either the interdepartmental group or the federal-provincial group ever been invited to present a report
to any parliamentary committee of either House of Commons or the Senate?
Ms. Sarkar: I am sorry, senator, but I do not understand your last question.
The Chairman: Would you care to answer the first two questions?
Ms. Sarkar: With respect to providing you the names of the federal-provincial members, I would like to
consult with the provinces and territories before I do that. I am not saying that I will not provide those
names, but I will consult with them to see if they are comfortable with that. With respect to the members of the
federal interdepartmental group, yes, of course we will provide those.
As to the interprovincial-territorial group, we can certainly give you the names of all the federal members,
as well as the names of the federal members on the committee internal to the federal government.
The Chairman: It surprises me, to say the least, that you would not be able to provide us with the
provincial names. It is not a secret society, surely.
Ms. Sarkar: No, but I believe it would be a courtesy to the other jurisdictions to ask them first.
The Chairman: As I say, I am still surprised that, in this day and age, you would feel uncomfortable
You meet and discuss issues such as the implementation of the Convention on the Rights of the Child. We have
been told in the past, individually and as a committee, that certain issues are being worked on. Of course, we
do not know what issues are being worked on or the status of them. There is no public means by which the people
can know that you are wrestling with these issues. We recognize that these are not easy issues. Are your minutes
available to the public or to parliamentarians?
As well, have you ever been invited on behalf of this federal-provincial group to report to a parliamentary
committee of the House of Commons or the Senate? Has that ever occurred in the past?
Ms. Sarkar: In terms of the deliberations and our wrestling back and forth with these issues being
made public, they are not made public precisely for that reason. The persuasion that can go on with
jurisdictions with the doors closed can be open and honest on both sides. I think it furthers the objectives of
the Convention on the Rights of the Child, or other conventions, that we can in fact have those tough
discussions in private. No, the minutes are not available.
The Chairman: Have you been invited as a committee or individually to discuss any of the issues to do
with any of your work in the whole human rights field? We are particularly interested of course in the
Convention on the Rights of the Child. Let us just take the whole in general. Have you ever been invited to
discuss those issues, or the fact that there is a committee and what its mandate is, et cetera, with any House
of Commons committee or any Senate committee previously, except the one time that you appeared before the
Standing Senate Committee on Human Rights previously?
Ms. Sarkar: To my knowledge, we have not. PerhapsMs. McPhee could clear that up.
Ms. McPhee: The only time we have been invited to appear before this committee was when the chair of
the Continuing Committee came and debriefed you.
Senator Pearson: Thank you. To follow up briefly on what Senator Andreychuk just said, we have learned
that, in other countries, the Parliament is invited to hold a session with officials on the concluding
observations. That is something in which we are quite interested. That is a partial explanation of what was
behind Senator Andreychuk's statement.
The Chairman: As senators we tend to have long histories and good memories. During our dialogue with
federal officials we were not allowed to know about the contents of certain negotiations with the provinces, yet
we receive that information from other sources. Just so the collective memory of this committee can be updated,
those minutes should be circulated to all committee members.
Senator Pearson: You have so many components, including the national cultural organizations, the CBC
and so on. You need not reply to this. I merely throw this out as a thought. I believe that it is important that
these organizations pay at least some attention to the children who are part of their mandate. I know that some
of them do. I know the National Arts Centre, for example, is doing an excellent job by encouraging young
artists. Would it be useful for you to have a link that would remind these organizations from time to time, when
they are reporting, that they should be respecting a child's right to culture? It is not the same as creating a
new audience or whatever. It has to do with the child's right to culture and history. I throw that out as a
Ms. Sarkar: I am receptive to that. I will not talk to you about other committees, but we get together
on our portfolio. It is a large portfolio and involves some major and influential institutions, so this is
something that we can raise with them as we raise a number of issues of collaboration.
Senator Pearson: If it were a standard question, then they would think about it every year.
Senator Carstairs: In light of the questions asked by Senator Poy and Senator Ferretti Barth, is there
an information package that you provide to the Department of citizenship and Immigration that they use when they
perform citizenship ceremonies or educate new citizens with respect to both the Charter and the Convention on
the Rights of the Child?
Ms. McPhee: The Department of Citizenship and Immigration prepares its own package. We do supply them
with copies of the Charter, and we can certainly look into also enclosing copies of the Convention on the Rights
of the Child.
Ms. Sarkar: I very much appreciate the ideas that you have given us, Senator Carstairs and others.
Senator Ferretti Barth: I have been to citizenship ceremonies four times.
I have never seen the Declaration of the Rights of the Child. If you are telling me that the office must make
the request to include in this kit the Declaration of the Rights of the Child and the Declaration of Human
Rights, that is different.
I normally attend this ceremony and I can tell you that I have never seen that document. You must take in
consideration what Senator Carstairs has said. The content of the information kit that is being given to
citizens must be reviewed in order to make sure that it is inclusive. Otherwise, we will still have to spend
some time educating new immigrants about Canadian laws. In fact, many children and adults do not know the law,
and it is our fault. We must do something about that.
Ms. Sarkar: I believe that Senator Carstairs's recommendation is excellent.
The Chairman: We have run out of time. I thank you for appearing before our committee and sharing with
us information about how the government is approaching the dissemination of information and compliance with the
Convention on the Rights of the Child. This is just the start. It appears that we all have a long way to go
We have requested that the chair of the coordinating committee come before us, and we look forward to that
happening. We look forward to hearing from the minister as well. Perhaps the two can appear at the same time.
You can put them on alert that we are interested in continuing this dialogue.
We will go right into the next session with Ms. Sheryl Milne, staff counsel, and Ms. Martha Mackinnon,
Executive Director of Justice for Children and Youth.
I would remind honourable senators that a travel date has been fixed by the steering committee for the week
of June 13 to commence our public hearings across Canada. The first meetings will be held in Atlantic Canada.
If you cannot attend, we would appreciate members from the region filling in, because they can provide us
with a broader perspective of the region. The dates of the routing to certain cities will be fixed shortly.
I now turn to the Justice for Children and Youth representatives. Welcome. Do you have an opening statement?
Ms. Martha Mackinnon, Executive Director, Justice for Children and Youth: Honourable senators, with me
is Ms. Sheryl Milne, Staff Counsel.
Thank you for the invitation to be here. It was gratefully received and we are honoured by this opportunity.
I would apologize that, given the short lead time we had, we were unable to get our materials to you well enough
in advance for you to be have them translated. Our office systems had broken down even as we were leaving the
I would emphasize how grateful we are that the Senate considers this issue important enough to have a
committee considering it. That, on its own, is a huge validation of the work we have been involved in for many
years, and also of your own understanding of the importance of children in our society.
Justice for Children and Youth was founded in 1978. It is still Canada's only legal clinic for children. We
practice law. We are lawyers. We practice in the areas of criminal law, education law, family law, human rights
law and child protection law. As you listen to that list, it becomes clear that our areas cover both federal and
What is unique about our clinic, apart from the fact we are Canada's only one, is that we act for young
people themselves. We take instructions from young people. We have a youth advisory committee that helps to
inform the work of the clinic and set priorities. We involve young people at as many stages of the work we do as
we can. However, we know that the work we do is for them, and they instruct us. They retain us as lawyers and we
act for them.
That has been very rewarding for me. I am not only a lawyer but a former teacher. I have been working with
young people all my life. For Ms. Milne, who is a social worker as well as a lawyer, it has been very rewarding
work, but it is also frustrating. There are ways in which trying to act directly for young people does not work
out as well as one might hope in the current legal map for children in Canada.
The fact that we act in many areas, and as I said they overlap provincial and federal jurisdictions, has led
us to one of the recommendations that you will find in our report. This is something that I believe you have
already heard. It is that the UN Convention on the Rights of the Child must be incorporated into domestic law in
It should not be an issue, because all provinces but Alberta have already ratified the convention. One would
think that across Canada there is not a significant amount of objection to the words of the United Nations
convention. However, to the extent that it is a challenge, in my submission, Ottawa should display leadership,
should set an example, and should work hard with the provinces to incorporate the convention into domestic law.
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.
I know that one or two senators have already asked about the role of education. People do not assert the
rights they do not know they have. We need to create a widespread climate that rights are known, so that we can
assert them. I believe a specific suggestion was that the convention be included in packages for new citizens.
All citizens of Canada need to know, and new immigrants need to know. They do not need to know just what the
convention contains. They need to know that Canada has said that it believes in it, that Canada was a proponent,
a signer and a ratifier. 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. Incorporating into domestic law, in my submission, is
absolutely necessary for us not to lose the powerful moral high ground we had in arguing for the convention.
We have divided our presentation. I will turn now to Ms. Milne, who will talk about some of the details in
our submission, including case work and the process whereby we came to our submission. We think it was a
particularly rich process. Then we will be delighted to help you any way we can in answering questions.
Ms. Sheryl Milne, Staff Counsel, Justice for Children and Youth: Honourable
senators, I will talk briefly about the structure of our submission and how we came to the recommendations that
you will find therein.
Our policy committee of Justice for Children and Youth reviewed most of the briefs that have already been
presented to you. You will see that some of our recommendations echo some of the recommendations that you have
already heard. We will not necessarily dwell on them except to answer any particular questions you might have.
In particular, our policy committee agreed with the submissions and the overall tone of the brief that has been
presented to you by the International Institute for Child Rights and Development, as well some of the language
used in that particular brief about how the rights of children and the way to involve children and youth in
decisions affecting them can come about.
Our submissions are framed somewhat by the case work of the clinic, in that we have given a few examples of
court decisions that illustrate the lack of a children's rights focus in our legal system. You will probably
recall that we were the applicant, as the Canadian Foundation for Children, Youth and the Law we are one and
the same organization that sought to have section 43 of the Criminal Code declared unconstitutional. We
highlight that case in our submission, not as a way to reargue the case and hope that we have another kick at
the can in terms of the legal arguments, but because we are troubled by the language in the decision of the
majority of the court in terms of how children's rights were dropped out of the discourse in that particular
case. It became a parents' rights case. I will be happy to answer specific questions on that issue.
More broadly speaking, we have many daily examples of children and youth who are not given a voice in the
proceedings affecting them and lack resources, for example, immigrant children, racial minorities and children
with disabilities. Ms. Mackinnon has already highlighted many of these areas. We act for them on a daily basis.
Those cases do not reach of level of test cases. They do not reach the level of judges making decisions. Often,
our clients give up before they get outside our office door, partly because of what it takes to mount a test
case. What it takes to mount a case in front of a court, in front of a judge, is extraordinary, even for adults.
Our system is not open to young people presenting their own cases or presenting their own arguments before a
In the case work that we have done, in the interventions, and in some of the immigration cases, as well as in
the Canadian Foundation case itself, we were often troubled by the litigation positions taken by federal
lawyers and provincial Crown attorneys, seeking to undermine the impact of the convention and children's rights
more generally arguments such as the best interests of the child is not a principle of fundamental justice.
Courts do not just make these things up. They hear arguments from both sides. Those are clearly the arguments
that they heard from federal lawyers. I do not blame the lawyers. They are required in many cases to argue
vigorously to uphold legislation before the courts. This goes back to the earlier submission from Ms. Mackinnon
that the government needs to have a leadership role in terms of instructing counsel in cases and in terms of
establishing laws that have real teeth in them when it comes to ensuring that children's rights are part of the
discourse in the cases themselves, and part of where we come from.
You will not be surprised to see that one of our recommendations is that the repeal of section 43 is critical
in terms of a children's rights perspective in this country. It is not about what is good or bad for kids so
much on the social science end of it, but it is about children's human rights. Our discussion of that is in our
The Chairman: Thank you for the submission. You were referring to a report that was filed in English.
It will be translated and disseminated. Perhaps you could elaborate on the points you will make so that they are
part of our record now until such time as we get the translations.
Senator Baker: You will notice that I did not ask any questions of the previous witnesses. Let us hope
that some leeway will be given by the chair in her thinking about her former position as a judge and that she
will allow some latitude.
Ms. Mackinnon, you said at the beginning that it was an honour for you to be here before this Senate
committee. It is a real honour to have both of you here. Both of you have dedicated, I imagine, the vast
majority of your professional lives to the subject of the best interests of the child and children's rights.
Your names, Martha Mackinnon and Sheryl Milne, are implanted indelibly in our case law that we read on Quicklaw
and Westlaw Carswell. Although it may not appear that you have made progress, you have. You have made progress
in every case that you have argued.
I read your excellent factum in the submission on section 43 to the Supreme Court of Canada. I noted that you
went thefull 40 pages and you did not count the index at the beginning. You could not. It would be against the
rules of the court. You must feel somewhat constrained when you have to intervene because you are only allowed
to give them 20 pages maximum.
The main question on everybody's mind is this: You argued the case that there should be no exceptions for the
offence that we refer to as common assault under the Criminal Code. When you assault somebody, there should be
no exception for that. You were arguing that children should not be allowed to be assaulted under section 266 of
the Criminal Code. You were not arguing that parents should have the right to spank or that teachers should have
the right to corporal punishment. You were arguing that section 43 not only covers parents and teachers, it
covers anybody who has any jurisdiction over children in any way, shape or form in a camp, at a sporting
event, coaching, or anything like that.
My question is this: Where do you think the problem lies? The majority of Canadians agree that there should
be no exception to the assault rule. The latest Decima Research poll clearly shows that the vast majority of
Canadians are opposed to it. The majority of the states in the United States, 27 of them, have eliminated it
from their laws. All the European countries have eliminated that exception of assault on children from their
laws. Two justices of the Supreme Court of Canada came out firmly and said, ``This should not be.'' What do you
think is the problem? Do you think this should be one of the primary recommendations of this Senate committee?
Ms. Milne: I will answer the second question first. Yes. That is the easy one.
As to the other question about why, there are a several things we need to do better in terms of educating our
politicians and educating our lawmakers about this issue. The public is getting there. The Government of Canada,
I know, has committed to they said so in their legal argument, any way educating the public about this
issue. They have published pamphlets that state that it is a bad idea, it does not work, and you should not hit
your children. We need to take it much further. When Sweden changed its laws, you saw a public advertisement
campaigns on television, milk cartons and so on that were much more widely accepted. That built more of a
response that was driven by the public.
What Sweden also did that I think we can consider a model and it is a return to one of our recommendations
regarding education is that they educated children about their rights not to be hit. That created a new
generation of people who grew up with that as an idea that is anathema to parenting. You now have a generation
of children, who have been raised by children who were told they were not supposed to be hit.
More needs to be done. Our politicians are, with the greatest respect, at the other end of the age spectrum.
They have grown up in different circumstances.
In the case itself, the court felt constrained to show deference to Parliament. This goes back to Parliament
needing to be a leader in this area and needing to take note of the Decima Research polls, if you will. However,
I think it is beyond polls. This is a fundamental human rights issue, whether you have a poll that supports you
or not. The Convention on the Rights of the Child has clearly said that this must go. In my view, it is clearly
one of our international obligations toward Canadian children, and we must continue with that message.
I have many ideas about why we did not win, per se, but that is for another day.
Senator Baker: It is wrong to say that did you not win. In the judgment, as I recall, there was a
distinct definition given to ``reasonable'' that says a person is no longer allowed to administer corporal
punishment to a child under three. A major decision of the Supreme Court of Canada, as I understand it and
correct me if I am wrong is that a person is not allowed to administer a blow to the head. Another one is
that, if are you a teen, the administering of corporate punishment is not considered to be reasonable. What you
are left with are children who are three to twelve. You used examples in your submission to the Supreme Court of
Canada where it is not considered hitting, but someone takes a child of 12 by the throat. You recall those cases
in case law. I have read them as well. That is determined to be all right. I do not think the Supreme Court of
Canada has disturbed that judgment. Thus, what you are left with is not a problem with judges, because as you
and I know, judges cannot go off on a tangent. They must apply the law and the interpretation of the law.
Am I correct that what you accomplished in your case is that at least you got a foot in the door and you made
three major changes to the law as far as ``reasonable'' is concerned under section 43?
Ms. Milne: Maybe.
Senator Baker: Please explain.
Ms. Milne: The reason I say that is that there was a recent case, this past fall, in Toronto in which
a mother who slapped her teenage daughter on the head was acquitted on the basis that that was reasonable force.
Senator Baker: When was that, what year?
Ms. Milne: This past fall, in 2004.
Senator Baker: The decision of the Supreme Court was in 2004.
Ms. Milne: This was subsequent to the decision. The decision came out in January. This was a decision
made in the fall. In fact, there is reference to our case, so the judge was certainly cognizant of it. The
danger in the case and how it could be interpreted down the road, is that there are many who would say it stands
for the legal proposition that the section is constitutional, period, and we are left with a reasonableness
standard that allows for varying decisions they may not be as egregious as the ones cited in our factum
based on the personal experiences of judges and personal views of what is reasonable. That is why we need to go
back to it. We rid ourselves of this section. I agree that we made some progress. If we looked at where we
started with the case, in 1998, when we filed our application and then in 2004 when the decision came out, we
had almost a sea change in public opinion about the issue. That I think can be attributed in part I would not
want to take all of the credit for that, there were many people working on this issue to the media attention
to the case and to the gathering of expert evidence. You referred to only 40 pages are allowed. About 10,000
pages of material were filed before the court at the first instance. Getting it down to 40 pages was a miracle.
Senator Baker: You could not go to 41 in a factum.
Ms. Milne: It still cries out for legislative reform because we still have a standard. There is also
the ridiculousness about the standard. There are demarcation lines that do not make a lot of sense in real life.
Senator Baker: You make two recommendations tothe committee. First, the United Nations convention
shouldbe enacted into domestic law. This would then play overon return;section 43, because some of your major
argument on section 43 would be eliminated with the enactment of the UN convention. If the committee were to
recommend both, that would do it. That is what you are saying.
Is my time up, Madam Chair?
The Chairman: Do you wish to respond to that?
Ms. Milne: I have no further response. Thank you.
Senator Carstairs: I certainly agree with everything in your brief. However, I want to make it clear
that it is just not politicians with which we have a problem. When I introduced a bill to repeal section 43 some
nine years ago in the Senate, I received a class set of handwritten letters from a group of children in grade 7
in Manitoba explaining to me why they thought corporal punishment was good for them. I would like to think that
that attitude has dissipated by now. However, I received an email this morning in which a young man in grade 10
told me why corporal punishment was good for him.
We need to educate teachers. I was appalled by the Ontario Teachers' Federation intervention in this case for
the continuation of corporal punishment. As a member of the Manitoba Teachers' Association for many years, I
know that, fortunately, Manitoba has long taken an opposite stand and Manitoba teachers have taken an opposite
As yet, there is no political will, despite the bill that is presently before the Senate. How are we to
educate people so that section 43 will be revoked?
Ms. Mackinnon: Senator Carstairs, I will just say a couple of not lawyer-type things. It is really
difficult for a child to say, ``My parents were wrong.'' Children have a deep need to love their parents and a
deep need to think their parents are doing, more or less, on balance, the best they can. That is a significant
reason that there not be a particular kid in the section 43 challenge case. That is why it is done as a bold
challenge to the legislation. You do not trot out some poor vulnerable child and say, ``We want to you to
testify that your parents damaged you.'' That seems to us horribly unfair. I would not ask that necessarily of
an adult, but I sure would not be asking it of a child. If I were to x-ray the souls of the Supreme Court of
Canada I think I would conclude that they like to think that their parents did the best they could. Oddly
enough, they probably think they turned out all right. They may have turned out better than I did. Overall, on
balance, I guess they did turn out well. What they fail to consider is whether they would have been even better
had they not been hit.
I am all right even though I fell out of a tree and hit my head. Maybe I could have done better. I do not
know. All kinds of injuries happen to us in our lives. Human beings are resilient. We are tough, we survive a
lot. It does not mean we could not be even better. If I were trying to create a brave new world, and I mean a
truly good, brave new world, then I would want a kid to think, ``I could be even better if I did not hit my
brother, and if I had not been hit. We could engender a deep respect for the humanness and the ``personness'' of
every human being, if we taught them all of life is better if you do not hit. It is a long-term project, which
is what Ms. Milne was saying. We cannot expect to get that deep visceral understanding of the importance of this
overnight. People can say that they do not agree with it, that you do not need to do it. The driving importance
comes from helping people to grow up knowing that they are entitled to be able to distinguish between, say,
``good touch'' and ``bad touch'' and, ``This is my body. Respect it.''
Senator LeBreton: I have a specific question. It seems to me that every day we turn on the television
or open the newspaper and see or hear about incidents of bullying. In your research and in the course of
conducting your cases, have you made a direct link between the behaviour towards children and children's
behaviour towards other children?
Ms. Mackinnon: There is a link. As you know, social science evidence is always a bit soft on cause and
effect, but there is certainly a co-relative link. Ms. Milne can expand on that.
On the subject of bullying, a chief psychologist of a school board, many years ago, once said, ``The first
time a kindergarten teacher assigns kids to groups and one of them groans because they do not like somebody else
who is in their group, they have given permission for bullying.'' Who cares about a groan, but what they have
also given is permission to value one human being as being less than another. By the time that behaviour
magnifies itself in grade 6 or 8, it will be much nastier, usually verbally. In high school it will be even
nastier and perhaps even physical. You then have a big problem. It was started by not teaching every three- and
four-year-old that they are equally valuable to the adults in their lives and to every other kid in his or her
Ms. Milne: To add to that, I know that you have heard submissions from Katherine Covell from Cape
Breton and the work that she has done in the human rights curriculum and the children's rights curriculum that
is focussed on grade schools. The outcome for using that curriculum with young children is that there is a
greater respect in the classroom for rights more generally, but also for fellow students. We allude to that in
our submissions regarding the need for education.
Senator LeBreton: My question relates directly to your brief and the whole issue of educating
politicians. I agree with Senator Carstairs, that it is more than a matter of just educating politicians. We
have had a recommendation many times before regarding an ombudsman or a children's commissioner. You suggest
that that person should report to Parliament. How extensive a role do you see this individual having? Could this
individual have some impact not only on parliamentarians or politicians, but also on the courts? How broad a
mandate do you envisage this ombudsman or commissioner having?
Ms. Mackinnon: We would see such a person reviewing existing and proposed legislation for the strict
purpose of assessingits effect on children and whether it conforms to the UN convention. Does it meet that
standard or not? If that person reported to the house annually, having reviewed, on a cyclical basis, say, 10
statutes a year, or one if it is the Criminal Code, and all proposed legislation, that would constitute core
work that would keep the children's commissioner busy in terms of holding Canada accountable for whether it is
meeting its international obligations. The advocacy piece could fluctuate by looking at social services,
programs and how we are serving the needs of children in poverty. That person could consider what policy
direction we are taking for Aboriginal or other youth populations that are doing worse than the average. I would
see such a commissioner reporting periodically, every two to three years, and having the power to collect
information and data and help Canada measure itself on the basis of what it has promised the world it will do.
Ms. Milne: In court cases, we have seen the power of reports, for example, from the Law Commission of
Canada and previously, the Law Reform Commission of Canada. Those kinds of sometimes slightly academic, but in a
sense, advocacy pieces are very persuasive, especially when dealing with social issues and rights issues in the
Senator Pearson: My question is with respect to the right to participate. I was struck by the
descriptions that you have outlined of cases where kids have been unable to find standing. I am particularly
interested in the education issue. I am also interested in separation and divorce proceedings and the ability of
children to have their voices heard.
In the schools, it has always bothered me that the kids seem to have no right to appeal or even have their
voices heard when they are arbitrarily, it seems, suspended for reasons that may be legitimate. Could you speak
to that? I believe that we have a long way to go in that regard. The school system is one in which the rights of
children are not nearly as well supported as they should be.
Ms. Milne: I would certainly agree with that. We intervened in the Eaton case. If one read the
judgment, one would think that it was forward thinking regarding the participatory rights of children in having
a say about what special education services they need and what is in their best interests. It is an equality
rights case. Unfortunately, despite the nice language in the Eaton decision, we have not seen those
rights realized across the country.
We are best able to comment on Ontario legislation. The Ontario Education Act is fairly archaic. Young
students have no standing until they turn 18. They have a limited voice when they are 16 and older with respect
to special education, which was the one outcome from the Eaton decision. We see, on a daily basis, young
people who are not heard. They are not even interviewed in cases involving discipline. They can face expulsion
when their side of the story has not even been heard. There is an almost hostile reaction to a young person who
retains us and then tries to assert some rights, even just procedural rights, in those kinds of processes, to
the extent that the outcome can almost be worse for the young person if they retain an advocate and want to push
back from the system.
Senator Pearson: Do you think lowering the voting age would make a difference? If kids had a vote at
16, people in schools might pay a little more attention.
Ms. Mackinnon: I do not know whether it would help. It is astonishing to me that in many provinces you
cannot drink until you are well over 18, and there are other rights that accrue to young people well past the
age of majority. They are not the majority of voters. In any case, it would not seem, necessarily, to make a
difference, but it might help them to feel that they have a shot at being heard.
Senator Poy: Thank you very much for your presentation. I have a practical question. How do young
people get in touch with your foundation so that you may take up specific cases? How does the process work?
Ms. Mackinnon: We have a toll-free number in Ontario. Most of our operating funding comes from Legal
Aid Ontario, so we have an Ontario mandate.
In addition, we are listed in a book that social sciences people all recognize as the blue book. With CRTC,
we have a new telephone number, 211, which is like 411, and that is in the blue book. It gives access to social
services and community supports, and we are well known within those areas.
Another way by which we are known, but we have to be cautious about it, is that we have a function called
``Ask A Lawyer A Question'' on our website. The truth is that somebody could, as you know, misuse the internet.
A person could ask us a question by saying, ``I am a 13-year-old girl,'' when in fact the person is a
30-year-old man. The information that we give on the internet tends to be fairly general. It is information
rather than legal advice. If we get an internet question that we think we could be helpful on, we strongly
suggest they phone us or get in touch individually so we can have more of a one-on-one communication.
Senator Poy: How young would these people be? At what age would they know to get in touch with you if
there are problems?
Ms. Mackinnon: Most are in their teens. The youngest client that I have ever personally acted for was
seven, and that is because I think he truly understood the nature of the question that he was asking me to help
him with. His sister was being put up for adoption, and he wanted to be able to continue seeing her. A
seven-year-old knows about his relationship with his two-year-old sister. He knew what he would lose. I felt he
was able to instruct me on that. I have to tell you that CIS in Ontario disagreed with that. A challenge to his
ability to either swear an affidavit or give me instructions went to the Court of Appeal, but he was found to
understand what he was asking for.
For us, the question is whether the child is competent. It is difficult for us to put an age on that. It
depends on the issue.
Senator Poy: Would that child have gotten the information about your foundation through family
Ms. Mackinnon: That specific one?
Senator Poy: Yes.
Ms. Mackinnon: The mother's lawyer was on our board.
Senator Poy: Thank you. That is what I wanted to know.
Ms. Mackinnon: The mother's lawyer happened to work for the public trustee's office. More broadly,
that is an office that knows about us, as does the Children's Lawyers Office in Ontario, as does the Child
Advocate's Office in Ontario. They contact us every week. Within Ontario, I would say that kids know. We are
well known in the agencies. Would we like to be better known by individual kids? You bet.
Senator Ferretti Barth: I have been hearing about the rights of the child for a long time. Even today,
we are trying to see what is working and what is not. It is a fact that bureaucracy slows down government
enormously. Everyone is talking but no one is acting. In my view, what is lacking is some action.
Do you consider that, as a rule, Canadian laws protect the rights of the child?
Ms. Mackinnon: A short answer the opposite of what I said before. Kids do not vote, but they also do
not pay taxes and they do not phone MPs. They are not activists in that way.
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. The corporal punishment case, not to belabour it, was
seen as a case where if you give kids a right to be free of assault, you have taken away a right from someone
else. 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. 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. It is a
difficult message to convey, but we need to sell it.
Senator Ferretti Barth: I would like to present to you a divorce case where the child was caught
between the father and the mother. A short while ago, ten years after the divorce, the father, who is a lawyer,
has written a book entitled Don't let me go, Papa. Have you heard about it? This child went through an
awful period, caught between the mother's lawyers, the father's lawyers, the rights of the child, and so on.
In your view, how would this child manage after such a bureaucratic experience?
In addition to recommendations and conventions that we can make, I would like for each province and each
nation to take charge of the problem and to take some action. At what age does the child understand his or her
rights? He loves his father, his mother, he even loves his school teacher. It is so sensitive that I believe
that these situations must be dealt with on a case by case basis and we must try and reduce the bureaucracy. It
is too complicated. We are worsening the situation instead of improving it.
Ms. Milne: One thing we do not do very well through our legal system is handle high-conflict marriage
breakdowns or the breakdowns between parents. We are not doing our children much service. They represent a small
minority of cases. However, the outcomes for those cases are pretty dire for some of the young people. If you
import a certain amount of rights language from the perspective of the child, that may help somewhat, because
too often the child is seen as a piece of property being shuffled back and forth between parents. We allude to
that in our brief, that is, the old vestiges of the proprietary nature of being a child. We need to move beyond
that, because too often what we see is that ``my child'' means not someome with whom I have a relationship, but,
rather, something that I own. We must make it clear in our language that children are human beings with dignity
and with rights.
Senator Ferretti Barth: Before the courts, yes, we must establish and protect but most of all respect
the complexity and the obvious sensibility of the child. These two things do not go together.
Ms. Mackinnon: I could not agree more that we treat them as property or as tools. When we are so angry
at our ex- partner or our about to become ex-spouse, we often consider children the tool to be used to make
someone else suffer.
Part of the reason that courts do not work well in these most strenuously fought situations is that, even
when you try to empower the child by giving the child a voice, the courts and other people, such as social
workers and others, will say that that also becomes a manipulative tactic because you are asking a child to
choose. You are asking the child to see one parent be unhappy. Whoever the children are living with that day may
well be the person they cannot stand making unhappy that day. Therefore, giving children a voice, an accurate
voice, is terribly difficult, because you end up, simply, with competing experts. Each parent hires his or her
own social worker, who produces a warring report. A legal construct is that access is not a right of the
parents. It is a right of the child. That is the law. However, it is never perceived in that light. It is always
perceived as the parental right to access. We might have the right phrases in case law somewhere, but that has
not changed how we feel or think about it. As a society, parents still think it is about them.
The Chairman: You just made me relive my 12 years in family court. You are so right.
Minister Cotler told us that the government is interested in a children's agenda. However, the conformity
with the convention is where he puts the marker down rather than compliance. We have heard listened to both
sides of the debate. Canada is seen to be one of the good actors in complying with international conventions. We
have been given some reasons why there has not been strict compliance with the convention. One reason is that
transformative rights are involved, and that we need to deal with the provinces since so much of the convention
affects the provinces. We have also heard other reasons.
Why do you think that human rights legislation internationally, and the convention more particularly, has not
been embraced and put into Canadian law in the way that other treaties have always been traditionally treated?
Is it that the nature of human rights conventions were very broad in general and what I call pious in vocation
when we started and they have only become more specific recently, or is there another reason why we have not
quickly embraced those in our national law?
Ms. Mackinnon: I agree with everything you have said, but I would add that this is about children, and
that makes it even more difficult. I do not like myself on days when I am cynical. However, I would say that
there is a trend away fromallowing anything to compromise domestic power. The major non-signatory to the UN
Convention on the Rights of the Child is the United States. That is a country where foreign policy is currently
being adjusted to reflect the fact that they no longer believe in treaties. National autonomy is an important
My own value, as it was with the Charter, is that you can express your national autonomy by choosing to yield
certain rights and choosing to say, ``We will not act whimsically. We will always act in favour of human rights.
That is a choice we make as an autonomous power.'' It is choice one can always make. I can only sadly and
cynically say that, at the moment, the pendulum is swinging away from trusting a consensus of nations that tell
us what we should do.
Furthermore, as we mentioned in our brief, Canada has been specifically criticized by the committee reporting
on the Convention on the Rights of the Child with respect to section 43. It is difficult see how a Parliament
could embrace the convention without repealing that section.
Ms. Milne: I am not feeling as cynical as Ms. Mackinnon is today, because I do think that the
existence of this committee and the focus that this committee has taken on human rights gives us hope. I hope
that many people will listen to what this committee will ultimately report back. I am heartened by the types of
questions you have asked and the level of discussion about children's rights in this room. We need to continue
this discussion and continue to talk to not just politicians, but other lawmakers, whether they are judges or
lawyers, and members of the public, who need to see this as an issue that affects them in their communities.
Human rights are important to many communities, but sometimes they do not see how they are relevant to them
in law. This is more of a personal issue. I think that we are moving in that direction.
Strong statements have been made about the importance of compliance with the convention. That is what we
would see as being helpful as opposed to the more diplomatic or more bureaucratic language of conformity.
The Chairman: We certainly know that the United States does not sign or ratify as many international
treaties as other countries. However, we also know that, in the practice of law, once a treaty is ratified, it
is automatically the law of the land. In Canada, once we ratify, it is not. Do you believe that Canadians
understand that distinction? We take great pride in the fact that we have ratified the convention. Do Canadians
therefore think that we are bound by it? Do they understand that subtle legal distinction? As a committee, do we
have an education component that we need to build to inform people of the consequences of ratification in
Ms. Mackinnon: Absolutely, they do not know. I first discovered it a month or two into my first public
international law course and only because I was taking it in order to moot in international law, and I was
horrified. I felt cheated. It was the first time, even as a law student, that I understood that the whole weight
of a state could sign something and then say, ``But we do not really mean it.'' I do not think Canadians
generally think that is the case. Education would do a good job, not only to help them understand, but also to
The Chairman: Do you think that if they understood there would be more discourse in Canada and
therefore more pressure, if I can use that word, on governments to abide by the treaties?
Ms. Mackinnon: It certainly would be a beginning, but it might be a long process. As Ms. Milne pointed
out, even with corporal punishment there has been a more rapid turn around in public opinion than we expected in
Senator Baker: You made two main recommendations to the committee. One is that the United Nations
convention on the Rights of the Child should be enacted into domestic law in Canada. This committee should
recommend that section 43 be extricated from the Criminal Code.
The question is this: If the UN convention were enacted into domestic law and this committee recommended that
the federal government see fit to sit down with the provinces to accomplish that, would it have the effect of
balancing provincial and federal law as it relates to children? For example, you spent a great deal of time, Ms.
Milne, arguing the Pike case trying to get social assistance for someone who is 16 years of age. You did
not really lose the case, but it all went back to the judgment. It was a typical judgment that followed the law.
You can not blame the judge, but it was seen as an intrusion into the integrity of the family. If you allowed
that, then you would have many 16 year-olds leaving families.
If we did manage to incorporate the United Nations convention into domestic law so that it would have the
same presence as other international accords in provincial law that is, there is a special section in each
province for the Hague Convention, and the Hague Convention shall prevail if there is any dispute the best
interests of the child is not looked at for the first year if an application is made, because that is,
supposedly, reserved to the jurisdiction that made the application, according to the Supreme Court of Canada in
Thomson v. Thomson. You know what I am talking about.
The UN convention, you believe, if it were enacted, would not only affect the cases that you have been
fighting concerning the rights of children and violations of section 15 and this is the twentieth anniversary,
so it is amazing that we are talking about this today and that you have argued it so often but also that it
would balance out not just domestic provincial rules, but also the negative effects of the interpretation and
what is in conventions such as the Hague Convention. Too often, we see children crying on television because
they are to be deported, although they are Canadian citizens. Section 6 of the Charter says that a Canadian
citizen has a right to remain in Canada, but that does not apply to children. You think that would go a long way
to balancing out not just the international law in our system, but also provincial law. Is that correct?
Ms. Milne: Absolutely is the short answer. The Pike case was probably one of the first cases
that we argued in which we actually put the convention squarely before the court. It did not have much of an
effect. We have moved long past that point. Pike is another one of those decisions in which we were kind
of successful, in that, even though they did not give in to the argument about rights, they did define the
definition of special circumstances which is what 16 and 17 year-olds had to prove in order to receive special
assistance. They did define so that it is an easy test to meet.
By making a convention law, there is a balancing effect. The federal jurisdiction is quite clearly bound by
it, so that cases involving immigration, divorce, cases under the Youth Criminal Justice Act, and those other
areas that are clearly within the legislative authority of Parliament, will set the standard for how we
interpret Charter rights for children.
On this twentieth anniversary, I would sadly say that children today do not have much in the way of section
15 rights. By enacting the convention not just saying that we will consider it now and then so that it
establishes rights for children, we will start to see the Charter be interpreted more consistently with a
children's rights perspective, which we have not seen to this day.
The Chairman: I would thank both of you for your testimony and for your recommendations for our
consideration. Most of all, I would thank you for the dedication that you have demonstrated to the children of
Canada. From today's testimony I see the complexity of the issues and that you act on the side of children. That
is reassuring. Thank you for both your commitment and your testimony.
The committee adjourned.