Hearings: OTTAWA, Monday September 26, 2005 - Issue No. 22 - Twenty-second meeting on:
MEMBERS OF THE COMMITTEE
No list published
McGillivray, Professor, University of Manitoba
Joanna Harrington, Professor, University of Alberta
Hon. Andy Scott, P.C., M.P., Minister of Indian Affairs and Northern Development
Hon. Ken Dryden, P.C., M.P., Minister of Social Development
OTTAWA, Monday, September 26, 2005
The Standing Senate Committee on Human Rights met this day at 3 p.m. to examine and report upon Canadas
international obligations in regards to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.
The Chairman: Welcome. Our first witnesses today are Professor Anne McGillivray, from the University
of Manitoba, and Professor Joanna Harrington, from the University of Alberta. We hope that they will provide us
with a framework on how children's rights developed and how children have been viewed in Canadian society so
that we have a global understanding of where children are positioned in Canadian society today.
Professor McGillivray, please proceed.
Anne McGillivray, Professor, University of Manitoba: Thank you for
inviting me to appear before the committee today. I will try to be brief because the subject is so huge that
brevity only makes sense.
The Convention on the Rights of the Child reflects two sources of rights: human rights norms and protection
rights. However, the history of these rights is recent. The two doctrines associated with childhood are also
associated with Roman law, which takes us back many centuries. These dominate legal ideas about childhood. The
first is pater potestas, the power of the father, which in Roman law was of great importance, and that
has been retranslated into common law as well as into policy. Under this doctrine, fathers are powerful people
in the lives of children today. Absolute control of marriage, inheritance, work, education, religion,
association all of the rights we associate with a person belong to the father of the child. The power of the
father being great in English common law, in Canadian law, we still see remnants of the Roman doctrine of
pater potestas in family privacy, in judicial deference to parental power and privilege, and in putting the
child behind the parents in many legal and policy decisions having to do with children.
The second doctrine associated with Roman law is parens patriae, in which the state claims the right
to be father of the people, that is, those who are said to be without legal capacity. This covers children,
people with disabilities and so on. Under this doctrine, children are objects of law, not subjects of law. They
are considered to be a res or thing, often infantia, another Roman doctrine that means "without
legal speech." That is from where we derive the word "infant." Through this period, the child was viewed as the
property of the father or of the state, focusing, even through parens patriae, only on children with
large estates, that is, rich children.
Then we have children as property, as workers. The Poor Laws, which dominated anything to do with child
protection, in loose words, since the time of Elizabeth I, permitted parishes to indenture children into work
into mines, onto ships and, frequently, into dreadful situations.
Charities began to enter the picture more fully in the 19th century, but even charity was punitive
and moralistic. Apprehension of indigenous children for remaking in Canadian residential schools is a remnant of
19th century ideas about what was good for children. However, during the 19th century,
modern ideas about child protection did emerge. Children's aid societies, child protection societies, were given
the right to apprehend children from paternal custody. Professional social workers began to take over from
amateurs in the early 20th century, and discoveries about physical and sexual abuse of children have
resulted in more child-centred laws in the Criminal Code and in provincial child welfare acts.
However, none of this has to do with rights. This was all thought, and continues to be thought in many
circles, to be good enough. Children do not need rights because we have this protection, but protection is about
incapacity. It is about weakness, powerlessness, lack of status, whereas rights are about capacity, will, power
and, of course, high status.
Protecting children is a strong rallying point for action, but children's rights and child protection are not
the same thing. Up until recently, "children's rights" was an oxymoron, a contradiction in terms children do
not have rights because they are children.
Enlightenment philosophers of rights equated rights with capacity, and capacity was, if you look at these
different philosophies, an amalgamation of will, power, high status qualities that are not associated with
children or with women, who did not have rights, or with indigenous peoples, who were thought of as barbarians
and like children, or servants or slaves. The will theory of rights doomed children's rights and justified the
use of assault against inferiors.
I will briefly give you a little flavour of what these people were saying. Hobbes, the author of Leviathan,
thought the child was the property of the father. He wrote:
Over natural fools, children, or madmen there is no law, no more than over brute beasts; nor are they
capable of the title of just or unjust, because they had never power to make any covenant
John Locke, coming along not much later in 1689, thought that the child as a potentially self-owning human
being could not be property but had no rights because the child was not rational. So rights are about
rationality. In his famous 1869 essay on liberty, John Stuart Mill said:
this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not
speaking of children.... Those who are still in a state to require being taken care of by others, must be
protected against their own actions.
Again there is the substitution of protection for rights.
There was a rival theory developing, however, to this will theory, that is, my will is what commands you to
do your duty to me and therefore respect my right. The interest theory says that, if you have an interest that
is clear and legally demonstrable, you may be able to command a legal duty in another to respect that interest;
so the interest becomes your right and the duty still is on others to respect that right.
A law creates a right if it is based on and expresses the view that someone has an interest, which is
sufficient ground for holding another to be subject to a duty. This is much more promising for a theory of
children's rights coming out of jurisprudence.
However, the most promising and I think the strongest source of rights in the Convention on the Rights of the
Child is human rights' norms. These are norms that are thought to apply to all human beings, regardless of
status or jurisdiction. They are based on the commonality of human characteristics. I like to say to my class,
"I have a body, you have a body, and there is not much difference in the pain our bodies feel and in the needs
our bodies have." We share this is important to these norms a belief in justice. Even small children have
strong beliefs in justice. They may not always be right but they have those beliefs.
These norms include freedom from torture, genocide and other pain to the body, self-determination,
participation rights, education, and freedom of expression and movement. These are some of the norms that have
made their way into the Convention on the Rights of the Child. They are political and legal norms of member
states set out in human rights instruments, which my colleague will talk about. States must translate these
universal norms into domestic law to make them operational.
With regard to children's rights on the international scene, I am sure this committee is familiar with the
Geneva Declaration of 1924, which basically dealt with welfare rights; and the 1959 Declaration on the Rights of
the Child, although it does not really cover rights. Neither had an enforcement mechanism. Although the
convention does have an enforcement mechanism, it is a weak mechanism the Committee on the Rights of the Child
but morally it is very powerful.
Children's rights movements, unlike other rights movements, are fought on constitutional grounds. The New
York Times in 1976 stated that we do not have boycotts, we do not have marches, banners and flags; we have
constitutions with which to work.
The convention is not perfect. It will take a lot more. Changes will probably have to be made to the
convention. It does bear marks of compromise. It does not give children the core right of equality before the
law. However, in Canada we are fortunate to have a Charter of Rights and Freedoms that does give children
equality before the law.
Sadly as well, the lead case on children's rights in Canada, which was heard by the Supreme Court, a decision
rendered in 2004, did not find that the corporal punishment of the child offended any right of the child, common
law, Charter or convention. To me, that was a deep blow for children's rights in Canada. I would suggest that
children do need rights. Our history is clear that moral duty, charity, benevolence, do not substitute for
Rights are also the language of international relations. They are the coinage of law. Calls for justice are
universally calls for rights; and in this 21st century, to deny rights to any group, including children, is to
deny them human status. Rights are now intimately part of the status of being a human being. It puts redress for
harm at the whim of the powerful, making children dependent on the benevolent flavour of the day.
I will be happy to answer questions later. Thank you.
Joanna Harrington, University of Alberta: Thank you members of this
committee for inviting me to speak today. I come before you as both an international lawyer and a constitutional
lawyer. That is where my focus lies.
In my written submission, I focus in particular on the UN Convention on the Rights of the Child, a treaty to
which Canada has given its express consent to be bound. At this stage, I think the important issue is obviously
what this committee is considering and that is the implementation of a treaty. It is all very well to sign an
international treaty, but it is obviously the domestic implementation of that instrument that is crucial in
terms of Canada achieving its aims in giving its consent.
My presentation focuses on post-ratification monitoring. Monitoring is the key to ensuring that an
international treaty is domestically implemented. I start from the position that Canada does not enter into
these agreements willy-nilly. Canada does in fact consider the current state of its law and practice, and that
is why there is a delay in Canada between signing and ratification.
The Minister of Justice has appeared before you to explain that, during that process, they ensure that both
federal and provincial law and practice is in compliance before ratifying a treaty in order to ensure that we
are not in breach on the very day of ratification. The problem is that there is an ongoing obligation with a
convention such as the Convention on the Rights of the Child. We must have some mechanism that ensures that we
maintain our status of law and practice so that we continue to follow the treaty's obligations. That is where
monitoring comes into force and why monitoring is so important.
Obviously, international monitoring is done through the Rights of the Child Committee. One problem respecting
the Convention on the Rights of the Child is that it is too popular in that it has become an overwhelming burden
for its committee to prepare the state reports and to effectively monitor. A state report on the progress of,
say, Canada, will have been based on out-of-date data that was submitted several years earlier. In fact,
Canada's next report to the UN Committee on the Rights of the Child is due in 2009. Clearly, domestic mechanisms
need to be put in place.
My written presentation in particular looks at what I consider are practical means of domestically monitoring
the implementation of the UN Convention on the Rights of the Child. In particular, I focus on the Department of
Justice. I find it quite shocking that Canada's international human rights treaties are found within the
Department of Canadian Heritage. I think the ordinary person on the street does not think of heritage when they
think of Canada's obligations under the torture convention, the rights of the child convention, or the
International Covenant on Economic, Social and Cultural Rights. To me, these are not norms and I apologize to
my colleague they are legal agreements. They are legal rights. They are matters of law, and the obvious place
to put those matters is in the government's law firm, the Department of Justice.
I believe that would serve both to ensure the monitoring of these obligations from a legal perspective and to
help in their symbolism and prevent marginalization in the Department of Canadian Heritage, which suggests
culture and past. Justice would deal with its current, ongoing legal obligations to protect children. In
addition to the UN Convention on the Rights of the Child, that would apply to all of our international human
As I have stated in my written submission, that is the approach taken in the U.K. The U.K. equivalent of the
Department of Justice deals with these matters. That is also true of Australia. Treaty making is done in the
Department of Foreign Affairs, but the implementation of these legal bargains is done in the equivalent of the
Department of Justice. In Australia it is the Attorney General's department and in the U.K. it is the Department
for Constitutional Affairs.
In addition to this role of monitoring for the Department of Justice, there is also the coordinating with the
equivalent ministries in the provinces with respect to the Convention on the Rights of the Child. The
assessments of child's rights legislation can be done domestically by the Department of Justice. In fact, one of
the recommendations made by the Committee on the Rights of the Child is that we continually review our current
and proposed Canadian legislation to ensure that it respects children's rights.
I have included in my written submission the suggestion that we consider the U.K.s use of "compatibility
statements" made in relation to the European Convention on Human Rights. I think the same thing could be done in
Canada. The same thing is done in New Zealand with respect to the International Covenant on Civil and Political
Mainstreaming international human rights obligations as legal obligations and making it an obligation of the
Justice Department to ensure that, in addition to being Charter compliant, legislation is compliant with
international human rights treaties, would attract further attention to these obligations and ensure their
ongoing scrutiny and implementation.
Another avenue for domestic implementation and monitoring is Parliament, and I commend this body for
following the trend of the U.K. and Australia. In 2003, the U.K. did a comprehensive study on the UN Convention
on the Rights of the Child, and Australia did the same in 1998. The Australian study attracted 700 public
submissions. Parliamentary scrutiny of the implementation of these treaties is important. I recommend that this
committee, or a joint committee on human rights, consider undertaking that task as and when the concluding
observations from the international bodies come down. When there is an interconnection between domestic and
international law, that is when you will be able to attract the most attention. When we receive a report from
the UN Human Rights Committee on Canada's record of performance, it will present an avenue for a domestic
parliamentary committee to review the report, which will attract further publicity and extend the dialogue to a
greater number of participants than those who are currently involved in the preparation of the state reports to
Geneva. Not everyone can go to Geneva and this is a far more practical avenue for that further discussion.
My last suggestion is with regard to Canada's human rights commissions. Canada is justly proud of its human
rights commissions, but they are not in fact "human rights" commissions in the international sense of a human
rights institution. They are what we call in the U.K. quality commissions or anti-discrimination commissions.
They focus on one human right in particular, the right to equality, which is an important right, but they do not
have the mandate to focus on all international human rights treaties, including children's rights treaties.
A good model is to include a children's commissioner as part of a human rights commission. I know you have
heard previous testimony on a children's commissioner. That was also done in the U.K. A benefit of having it as
part of a broader mandate for a human rights commission is that, as we see in Australia, children's rights can
work with Aboriginal rights as part of the broader mandated human rights commission. I recommend that to you. I
have given some examples in my written submission.
One of the benefits of this domestic monitoring with respect to Aboriginal peoples has been that, in
Australia, both the parliamentary scrutiny vehicle and the Human Rights Commission have been able to use their
mechanisms to draw attention to the situation of Aboriginal children. There have been reports in Australia on
mandatory juvenile detention, especially concerns about this in certain states in Australia, as well as on
Aboriginal children and legal aid, the justice and the education system. That combination of a broader human
rights commission and a specific portfolio for children's rights as well as Aboriginal rights has been
successful in Australia, and I recommend that to you.
Senator Pearson: You have covered a lot in a short time. I understood and applaud what you said.
I am interested in a comment that Ms. McGillivray made with respect to the way in which the legal tradition
has led to this focus on the state deferring to parental rights. That was one of the issues in the section 43
discussion. Would you elaborate on that?
You also spoke about the state with respect to Aboriginal children and residential schools. I know you have
done a lot of work in this area. Are certain Aboriginal traditions or law based on the history of children?
Ms. McGillivray: On the topic of parental deference, I once sat through a lecture by a
colleague, which is always fun to do. I had done a lot of reading in the area of children's medical consent, and
a clear pattern emerged. When the parent and the child were against the state, they got their way. When the
parent was against the child and the state was with the parent, the child always lost. The section 43 decision
is filled with language about protecting children and has almost nothing about the rights of children, or the
rights of children to enjoy security of the person.
It is a strange decision. It does not read like other judgments. It is repetitive and the themes are strong
about keeping parents out of jail because that is what is good for children. In such cases the parent looms
large. The parent is obviously an extremely important person in the child's life.
The Convention on the Rights of the Child leaves most of the burden of teaching the child his or her rights
to the parent. The parent may be opposed, so it is not and effective education mechanism.
On the subject of residential schooling, Aboriginal traditions with respect to children are powerful and
extremely moving. All the treaties were made relative to the lifetimes of children. The generations that the
treaties were to protect were not the parents' generation but generations of born and unborn children.
Some anthropological reports of the Huron culture state that parents believed that, if they were harsh with
their child, the child would die of grief, or the child would commit suicide by taking water hemlock and, if the
parent ever wanted to see the child in the afterlife, the parent would have to kill himself or herself to follow
the fast moving light spirit of the child.
Due to the basic existence enjoyed by First Nations and indigenous people, they do not throw away children
lightly. It was in European societies, where people were having large numbers of children, that not a lot of
attention was paid to the health or safety of specific ones. It is a very strong children's rights position.
Senator Oliver: I want to thank the witnesses for being succinct, clear and profound on a difficult
Neither of you discussed what is probably one of the biggest legal problems we have in Canada on this issue,
and that is the jurisdiction between the exclusive rights of provincial and federal governments in relation to
the human rights of children and the protection of the rights of children.
When you touched on the post-ratification monitoring system, you came up with four points. None of the four
addressed the problem of the intertwined jurisdiction of the federal and the provincial governments. Could you
both comment on that and give us your explanation of what we as a committee should be looking at as a way of
getting an enforcement mechanism from the federal government that can apply to the provinces in the conflicting
Ms. Harrington: I think you have to accept, as a constitutional fact of life in Canada, that we have a
division of powers and a fundamental support of federalism. There is nothing that the federal government can do
to enforce with respect to a provincial government acting within its jurisdiction.
We currently work with the provinces, both pre-ratification and post-ratification. We work to ensure that the
position of our law will be in favour of implementation before we ratify. We work with the provinces at that
stage. In terms of post-ratification, currently Heritage works with the provincial governments to ensure their
contributions to our reports. If we give that mandate to the Department of Justice, they could also provide
advisory services to ensure continued compliance with the convention.
Senator Oliver: Your first main point was that this should not be in Heritage, but in the Department
of Justice. Most departments have Justice lawyers in them, so if you have good Justice lawyers in Heritage that
are doing there job, what would be your position?
Ms. Harrington: It is not a question of good or bad. I do not mean to convey that. An ordinary member
of the public decides where to look for laws. The first place I would go is the Department of Justice. On the
Department of Justice website, there is a little tab called "laws" providing "e-law" access. From educational,
access and symbolic points of view, it is important to put it in Justice. A human rights unit within Justice
does this work. You are quite right. There is duplication by also having it in Heritage.
However, I would also suggest that, at present, the Department of Justice is responsible for Charter
compliance. Other department of government look to them for advice on legislation and to determine if there is
compliance with the Charter. If Canada's position publicly and internationally is that for many of our human
rights obligations, we are in compliance because we are compliant through the Charter, surely it is not then
hard for the Department of Justice to say that we already have Charter compliance, and can we not extend that to
international rights compliance? They already do it if they are following their public statement. Particularly
at Geneva, this is the position Canada takes.
The issue of federal-provincial jurisdictions is a problem for the implementation of human rights, not just
children's rights. I would suggest that if you had a revamped Human Rights Commission that was a broader,
mandated Human Rights Commission, it could also serve as an advisory service to the provinces with respect to
the implementation of children's rights.
Ms. McGillivray: I would agree with my colleague. It is a fact of life. I always thought it was unfair
that children were cut into all those different slices. The federal government has done things to equalize the
situation for children, health care is one situation. Many voluntary steps are taken in the provinces such as
intervention standards and that sort of thing. It is about vigilance and also about recognizing children's
rights. As much as we would recognize the constitutional rights of adults and constitutional issues involving
adults, we must recognize that those belong to children equally, and that it is even more important to
vigilantly enforce those rights.
In every province except Quebec there are advocates for children. Quebec has the children's commission, which
is amalgamated with its human rights commission. The commissioners retain separate status. That is a good
system. Where you have children's rights commissioners in each province, there could be some relationship with a
national commission secretariat.
There is a problem with language. I have been told that it is anathema in government circles now to say
"children's rights." I must not use that phrase when I am with certain ministers. I have been involved in the
Canadian Incidence Study of Child Abuse and Neglect, round two, and the chair was clear on that. He said that
they do not use the phrase "children's rights" in connection with these things." A large part of the difficulty
is perception as well as status.
Senator Poy: Ms. McGillivray, you were talking about the medical rights of children, could you expand
on that? You said that, if the government and the parents agree, then the child has no rights. I am thinking of
treatment and surgery. In Canada, at what age would a child be accepted as being responsible for his or her own
Ms. McGillivray: England has the Gillick decision and "Gillick-competence." Canada has always
had a rule in tort law called the "mature minor" rule. If the court finds that the child is capable of
understanding the issue and the consequences, the child is allowed a large portion of, and sometimes all,
decision making in the matter.
The equation coming out of the cases also has to do with the seriousness of the situation. Birth control,
which was the Gillick question, is not so serious. What is wrong with me having access to birth control
knowledge; or to a blood transfusion when I would die without it? You have a kind of sliding scale being fed in.
We see cases of Jehovah's Witness children of 14 being permitted the choice to die, and that is with the support
of their parents. As long as you have your parents on board, you will be a winner. That could be clarified in
the law. However, the rule is there.
Senator Poy: If a child makes a decision contrary to what the parents want and what the court wants,
who decides that the child, of whatever age, is capable of making that decision? Would the court be the final
judge of that?
Ms. McGillivray: In some cases, yes. In the extreme cases, the blood transfusion cases, often the
child is apprehended. There was a dreadful case in Winnipeg some years ago where the lawyers were literally
fighting over what ended up being the dead body of the child on a gurney in the hospital. These are not good
situations. Very often the decision is that of the doctor. It is not so dramatic, and nobody takes the matter to
court. There are many internal mechanisms where people can speak with the child and assess the child's
In the Canadian analysis of these things, it is helpful to use the structure of the Charter. We do not say,
"No," to all children, we start by saying, "Yes, you have all these rights, now I have to think about how I can
justify not letting you do this," which puts the onus where it belongs, on the adults. If you cannot think of a
good reason to do it, then you probably do not have a good reason to deny it.
Senator Poy: Ms. Harrington, you mentioned treaty implementation being under the Department of
Heritage. Can you explain how that happened?
Ms. Harrington: I do not know exactly how it happened. I checked the mandate in the statutes setting
up the Department of Canadian Heritage and there seemed to be a collection of matters that did not necessarily
fit into other departments. I cannot give you the reason, because I have not researched it further. Statutorily,
it is within that departments mandate. I would suggest that, for the ordinary person on the street, that is not
a logical flow.
The Chairman: Ms. McGillivray, on your point about the case in Manitoba, if it is the one I am
thinking about, it was a question of jurisdictions or departments all presuming to have in mind the best
interests of the child. Is that the case you were talking about?
Ms. McGillivray: It was before I arrived there. The scenario was described to me. My understanding
and I could be wrong is that the parents had hired a lawyer to represent the child's best interests. The Child
and Family Services Department had a lawyer. It was at an acute stage of the child's treatment and it left a
very bad taste in everyone's mouth. Both sides believed that they had the best interests of the child in mind. I
could be quite wrong.
The Chairman: You are quite right. It was an apprehension case, where the social services department,
or its equivalent, took the child into custody because they believed the parents were not acting. It was a
question of two competing guardians.
Ms. McGillivray: That is right.
Senator Dallaire: My background is mostly on the international side in dealing with children. My
research is on child soldiers and children in conflict, so I am on a steep learning curve here. I am learning
from my colleagues.
In your knowledge of the evolution of human rights, particularly in a society like ours and specifically in
ours, knowing there are centres across the country in academe mostly involved in the study of human rights and
in the pedagogy of teaching it, is there any formal process of doing research on the advancement of the Charter?
Is there any formal process in advancing Canada's perception of human rights and how it inputs into the evolving
nature of human rights? It is not a finite thing; it is ongoing. Is there such a structure or direction in
Ms. McGillivray: There are a number of academic agencies, although I could not name them, and, of
course, the academics themselves. I know many constitutional rights lawyers seem to have given up, which is
depressing. They seem to have become complete sceptics with respect to rights and what the courts will do. It is
not a pretty sight. If academics who believe in human justice are saying that these are not the right words,
what are the right words? As for advancement, there are groups working in specific areas, such as child soldiers
and war crimes against children, but nothing much more comes to mind.
Ms. Harrington: We may take a different view. There is a healthy debate among constitutional scholars
in Canada, and that is how it should be. With respect to advancement of the Charter, to clarify, do you mean
advancing the Charter abroad or within Canada?
Senator Dallaire: I think of this nation with its Charter. It was produced in 1982-83 after many years
of study. That is fine, but where does it go from there? It has been nearly 25 years. How will it evolve? What
sorts of mechanisms are there, of which childrens rights is a subordinate component? In the same way, in our
perception of humanitarian law and of how rights are evolving within humanity, which child rights are there? We
are going around the world defending it, but is it a stagnant entity? Are we, specifically in Canada, building a
capability for having that input? I am not talking just constitutionally; I am talking about the nature of
Ms. Harrington: That is the very nature of being an academic in those fields. In terms of a specific
structure for that advancement, there is no definite program, but, in the nature of being an academic focusing
on the Charter, you are contributing to it. On the twentieth anniversary of the Charter, various conferences
have been organized. Coming up now, we are seeing conferences organized with respect to equality rights in
particular, because that came into effect after the main bulk of the Charter came into force. It is being done
through academic conferences and academic writing, as well as through courses in the National Judicial Institute
and the Canadian Bar Association. I would not say there is one structured program for advancement. Canadian
judges go abroad and participate in bills of rights programs. Canada also learns from other countries that have
had a Charter long before we did. Dialogue and exchange are going on.
Senator Dallaire: To make my point, the whole basis of what we are doing is human rights and the
defence and propagation of them, and there seems to be no political entity mastering all this. Academe is
crucial in the research, but where is the thrust of our nation in regards to the continuum of that and the
advancement of human rights? There does not seem to be a lead. It seems to be defused and waiting for another
anniversary to get something going.
The Chairman: At the risk of answering you, I think Parliament has a role in that. The Senate
particularly has a role when we study the rights of minorities, regional representation and the national
interest. I think that is why we have a Human Rights Committee. Some of us came to the conclusion that we have
to play our part, and not just leave it to academics. There should be a political will brought to bear, and
hopefully we will do that.
Senator Dallaire: That is a magnificent response, because it is there in the executive dimension that
I feel we still do not have a dominant entity that is bringing all this together. There is work being done, of
Senator Losier-Cool: I would like to come back to section 43 concerning corporal punishment, further
to Senator Olivers comment about federal and provincial authorities.
I spent 33 years as a teacher and the corporal punishment provision often applies in the classroom. The
Canadian Teachers Federation believes that section 43 of the Criminal Code must stand because it protects
Given that this is an existing Criminal Code provision, what additional steps could the federal government
take to handle this question more effectively?
Should a childrens ombudsman or commissioner be appointed? If such a commissioner were appointed, what
authority would he or she have? If responsibility is transferred from Heritage Canada to Justice, will Justice
have any authority at the provincial level?
I would like to hear your views on this subject. I agree with Ms. McGillivrays contention that this
provision truly is a violation of childrens rights.
Ms. McGillivray: Section 43 is a defence to assault. We have lots of defences to assault. That is one
of them. The kind of assault to which it is a defence, is punitive assault. It is not me stopping a child from
running into the street; it is me spanking the child, hitting the child, for running into the street. Without
the defence, I would not legally be allowed to assault a child. I could still do all the protective and
nurturing things. If the defence were not in the Criminal Code, the provinces would be enforcing breaches and
would be developing protocols from province to province saying, "Here we intervene; here we warn; and here we
charge." There would not be wholesale prosecution. However, federal justice would not have a role in the
enforcement of such a change.
The Supreme Court did rule that it was constitutional. However, it removed the power from teachers. Teachers
can no longer assault. All they can do is what is called necessary restraint, which they could do anyway. They
left it with parents, with much stricter rules for how it is to be applied. That does not foreclose
Parliament from repealing that law, but it would not be federal justice.
The advocates, commissioners, and so on, would be promoting better ways of looking after children; that is,
alternatives to the use of corporal punishment.
Senator Losier-Cool: That was the direction I wanted to take with my question. Would you like to
elaborate, Ms. Harrington, on what kind of programs would be offered as an alternative discipline?
Ms. Harrington: I will follow up on Professor McGillivray's points with respect to the children's
commissioners. I think there is a role for a body, independent of government, serving as a child's advocate or
commissioner. I would prefer to see that person working within the structure of a national human rights
institution. There is a role for a child's commissioner or a children's rights commissioner to serve an
education function and to do certain specific investigations. I do not think this person should handle
individual complaints. There are alternatives for that. However, a children's commissioner could have an
education, advocacy and investigative function and conduct broader inquiries rather than deal with specific
The Chairman: The Supreme Court case is indeed a strange one, but it is also a difficult one. I have
heard it argued and sometimes argued it myself that we have failed in continuing education respecting children's
rights and children's independence. Much has been said about the responsibility of parents. Unless we educate
our parents, we will put at least some vulnerable parents into even more difficult situations. Was it not the
court's way of encouraging an open debate, and of getting Canadian society to reflect on the use of punishment
by corporal means? You cannot touch a child under two or a child over. They are moving towards it. Is it their
way of saying that there should have been more public education on this issue? Would this be one way of
including an educational factor before passing legislation?
Ms. McGillivray: That concern has always accompanied this issue, that is, which comes first,
the education or the change? Of course, change brings with it education. Some people are working on a study to
be conducted shortly in several different areas, jurisdictions, of what parents understand about that decision.
My guess is that they understand very little. I think most people do not have a clue. When that decision was
released and everyone ran for the reporters standing on the steps, religious groups who had opposed the change
claimed it as a huge victory for their side. As far as the public is concerned, I think that children are in the
same place they were before that decision. I wish I could be more generous about it, but I have not been able to
find a reason to be more generous.
Senator Pearson: We have heard a great deal in our travels and in our hearings about the fact that too
few people know anything about children's rights, that we failed from the educational point of view, and that we
failed respecting article 42 of the convention by not making the principles and provisions widely known. Do you
have some suggestions about how to go about educating your own colleagues about the issues? We would like to be
able to phrase our recommendations in such a way that they would have some impact. You mentioned judges, and so
on, but I am not convinced that the principles and provisions of the convention are widely known or understood
in the legal community.
Ms. Harrington: I think that is accurate with respect to all of our international human rights
obligations and treaties. I would refer to a book published in 1977 called The Law Nobody Knows. The
premise of that book still applies. In other jurisdictions national human rights institutions are being used to
train lawyers and others. That could include school teachers, judges and social workers. We could train our
people on both our international and our domestic human rights obligations so that they see them as obligations.
They can see them work together and learn that not one takes priority over the other. They work together. Each
one is a part of the whole puzzle. Yes, there is a role for training. I would put that training responsibility
in a national human rights institution. While we currently have problems with underfunding, resources, et
cetera, I would see it as a practical recommendation, that is, to revamp them to take on that role.
Ms. McGillivray: My worst problem has been with defence lawyers. Most of my colleagues are pretty open
to the idea that it is not a good idea to hit children these days and probably never was. I tell them, "If you
choose to assault a child, you should be prepared to defend it on the same grounds as anyone else." They have
all said, "I could live with that." There are many situations in which you can legally assault, and you do not
have to resort to section 43.
The Supreme Court equated it with the "nurture of children." They have said it was necessary for the nurture
of children. It is completely the opposite of nurture. We have the common law defence of nurture. It is always
understood that I can interfere with a baby's person and change his diapers and feed him. It is not a problem in
the law. That has been my best line, though.
Senator Oliver: Professor McGillivray, I was interested in the historical remarks you made today to
give this committee a background about rights. I was particularly interested in the quotes you had from Thomas
Hobbes and Locke. In the Locke quote, you talked about the age of intellection and when adult rights came into
place. What age did he suggest for the age of intellection and what age do you suggest it should be? In Canada
today we have a lot of age-based criminal capacities built into our statutes. Should they be there? At what
stage should we rely upon evidence or testimony given by a child?
Ms. McGillivray: There is a sliding scale and, because of the complexity of that sliding scale, we
have chosen age 12 as the onset of criminal responsibility, but we have saved the full weight of the criminal
law for those over18. That seems to be a general fit with what we think of as adolescence. Other countries have
much kinder provisions, starting at age 14, for example. Cuba suspends some responsibility until the age of 24.
With regard to children's evidence, it is about the requirement of the court and not so much about the
capacity of the child. If the court can believe that the child is giving information that is reliable, the court
can hear the child. It will depend on the complexity of the case and the child. It is less age based. That would
also apply to medical consent. It is the capacity of the person that is important.
We used to have the vote at age 21. I think it was Mr. Trudeau who lowered it to age 18 and appealed to those
people who liked the rose in the lapel. Even so, 18 is fine. Why not 16? There is no real reason for this. In
England, there were two different ages of onset of rationality. It was even more complicated than what we have.
In Blackstones Commentaries on the Laws of England, in the late 1700s, he talked about "the empire of
reason." That is just another way of saying "rational." He says "at whatever age the state may fix." Locke also
took that position.
The Chairman: Would you agree that part of the problem of trying to educate on children's rights is
that we have different laws at different times and they are not always consistent? The ages at which a person
may vote, go to a liquor store or a bar, or whatever, are all different and they keep changing. There are
differences from province to province. That probably confuses most people when they consider when a child should
have full rights as opposed to progressive rights, which is what the convention talks about.
Ms. McGillivray: This is why it is handy having the CRC it does say 18 unless the age of majority
is fixed before that age. There has to be some age where we say that a child is no longer a child for any
specific purposes. There should be some dispensations. I do not think there could be one age go cover
circumstances. That would be chaotic.
Part of it has to do with our own notions of maturing capacities, such that in one area there is a more
mature capacity than at the same age in another area. For example, a 14-year-old might drive well but I tend to
think not. We allow them to drive on private property, but perhaps the age for driving should be 30 years. Some
of it is convenience and some of it is history, like Mr. Trudeau deciding to change the age and being able to do
it. We have that happening now in the area of sexual consent. Not all will ever be totally satisfied.
The Chairman: All of us mature at different rates. Some take a little longer. You have stimulated the
debate today and, certainly, put it in a historic perspective, which we had not heard yet. You have brought a
different dimension to the committees deliberations, and I hope that some of your comments will be reflected in
our report and that you will follow the work of the committee. Thank you for coming to our meeting.
I am pleased to welcome our next witness, the Honourable Ken Dryden, Minister of Social Development. Minister
Dryden, please proceed with your opening statement, after which senators will have questions.
Hon. Ken Dryden, P.C., M.P. Minister of Social Development: Thank you, Madam
Chair. Allow me to introduce my officials here today. With me are Ms. Sonia L'Heureux, Director General, Early
Learning and Child Care; Mr. John Connolly, Acting Director, Community Development and Partnerships Directorate;
and Ms. Deborah Tunis, Director General, Policy and Strategic Direction.
Thank you for inviting me to appear before the committee today. The Senate of Canada and Senate committees
have played a prominent role in studying and making recommendations on important social issues. I am pleased to
be here as part of your review of Canada's international obligations with respect to the rights and freedoms of
children, and I congratulate you for undertaking this work.
I would also like to mention the efforts of Senator Pearson. For many years, as we all know, Landon Pearson
has been a tireless defender of children and a tireless advocate for children Canadian children and children
around the world. Senator Pearson loves children, believes in children and believes in the future. She wants
something better for children. We are lucky to be the beneficiaries of her work and her joy.
Canadians have certain understandings about what it is to be Canadian, what we expect of ourselves and for
ourselves and what we expect of and for others. Canadians expect a chance and a second chance. We expect the
opportunity of a full, rich and rewarding life. For some, this does not happen easily because of illness,
accident, disability, poverty, age, personal or family circumstance, or because of something that puts us behind
when the race begins or somewhere along its way. At Social Development Canada it is our job to see the gaps
between those Canadian understandings and, in conjunction with others, to do something about them.
What are we doing? In 1990, along with five other countries, Canada took the lead in organizing the World
Summit for Children. Then, one year later, on December 13, 1991, Canada ratified the United Nations Convention
on the Rights of the Child. In so doing, we affirmed our understandings and expectations for children and our
commitment to work with governments and civil society to promote the well-being and healthy development of
children around the world.
As senators heard from previous witnesses, putting the convention into action is not the work of any one
department or agency. Rather, it cuts across all Government of Canada departments, across governments at every
level and across society. Other ministers and government officials have appeared before the committee to speak
to how Canada's international commitments are delineated within the domestic context. I would like to tell you
what Social Development Canada is doing to improve the well-being of children and families in Canada.
Social Development Canada was created in December 2003, inheriting from other departments a set of policies,
programs and services, and the values and motivations that generated them, for seniors, persons with
disabilities, caregivers, and for children and families. SDCs purpose is to take all that we have inherited and
to build on it, to strengthen Canadas social foundations by ensuring income security and social well-being,
always speaking to the expectations and understandings we have as Canadians.
In terms of children, the National Children's Agenda in the late 1990s was created to lay out the overarching
vision, goals and areas for collaborative action to ensure that children have the best possible start in life
and have the necessary opportunities to realize that potential. The NCA was the result of extensive consultation
with stakeholders, Aboriginal organizations and Canadian citizens, and represented a new era of
federal-provincial collaboration. Seven years later, in May 2004, consistent with the United Nations Convention
on the Rights of the Child, the Government of Canada reaffirmed its commitment to children and families with the
release of A Canada Fit for Children, making these commitments more concrete and clear.
For healthy child development, the Government of Canada and Social Development Canada recognized that there
needs to be adequate income, effective parenting and supportive communities. Our policies, programs and approach
are based on this.
First, in terms of adequate income, in 2003-04, the Government of Canada through the Canada Child Tax Benefit
and the National Child Benefit supplement for low-income families provided $8.2 billion to help 3.1 million
families with the cost of raising their children. Exact cause and effect is hard to measure, but our most recent
analysis, which looks at the year 2001 when the NCB was slightly lower, gives us a glimpse of what the NCB can
It indicates that the National Child Benefit reduced the number of children living in low-income families by
8.9 per cent, or by 94,800 children in 40,700 families. In addition, for those families with children who
remained in low-income circumstances, the NCB reduced their low-income gap by 12.3 per cent and increased their
average disposable income by about $900, or 5.5 per cent.
Further, for low- and modest-income families who have a child with a disability, the child disability benefit
provides them up to $2,000 annually as a supplement of the Canada Child Tax Benefit. What all this means in real
terms is that a family earning less than $30,000 a year, with two kids, receives $3,980 a year and an
additional $2,000 a year if one of their children has a severe disability.
Second, in terms of effective parenting, to help parents in their crucial role, Social Development Canada
also supports a range of programs and services through transfers to provincial and territorial governments. For
example, under the 2000 early childhood development agreement, the Government of Canada transfers $500 million a
year to support improvement and expansion of early childhood development programs and services. It is also
transferring $350 million a year under the 2003 multilateral framework on early learning and child care to
improve access to regulated early learning and child care programs for young children.
Last February's budget went further, confirming a commitment of $5 billion over five years to a system of
early learning and child care across the country, to a system of higher quality that is more developmental, that
is more accessible and inclusive.
The provinces and territories and the federal government have worked together to develop a shared vision for
early learning and child care, and I have been working with the provinces and territories on bilateral
agreements in principle that will move this vision to a reality. Six provinces have signed these agreements so
far, and we expect the remainder to do so in the weeks and months ahead.
To put this latest initiative in perspective, the $5 billion over five years represents an increase on what
all levels of government are currently spending on child care of 48 per cent. For the nine provinces exclusive
of Quebec and three territories, it is an 82 per cent increase. These efforts will have a significant impact on
children and their parents.
As part of this $5 billion over five years, $100 million will be spent to improve early learning and child
care for First Nations children on reserve. Another $100 million will be used for a knowledge information and
data strategy to track progress, guide the development and raise the standard of and deliver on the right
ambitions for early learning and child care in Canada.
Third, in terms of support of communities, childhood experiences are influenced strongly by the communities
in which children live, play and learn. Through the understanding the early years initiative, we are helping to
provide communities with information on the readiness to learn of their children. This program began in 1999 as
a pilot project in 12 communities, is expanding to 25 more communities this year and, over time, will be
expanded to 100.
In addition, our social development partnership program funds projects that enhance the capacity of
non-profit and voluntary sector organizations to engage in research projects, for example, on issues related to
child development and early learning.
As well, under the Action Plan for Official Languages, Social Development Canada is investing in two
initiatives to promote early childhood development in official language minority communities.
Social Development Canada works to support children in other ways. It is engaged internationally on
childrens issues as a member of international organizations and through our bilateral relationships with other
countries. This engagement takes many forms and includes the sharing of experiences and research that supports
ongoing policy and program development in Canada.
As well, work with international organizations assists the development and use of benchmarks and standards
that help measure progress in Canada.
Social Development Canada also works with provinces and territories and other federal partners to ensure that
the rights of children are protected during inter-country adoptions.
All this is what we do. How well our children do is, in some part, because of this, but in much greater part
because of how our families do, because of how our economy does, because of how our society does. We measure all
this through the national longitudinal survey of children and youth and the forthcoming Aboriginal children's
The question for your committee, the question for Social Development Canada, is how we can do better. As I
said at the beginning of my remarks, as Canadians we have certain understandings about what it is to be
Canadian, what we expect of ourselves and for ourselves, what we expect of and for others. For our children, in
their health and security, their living conditions and circumstances, in their education and learning, we expect
a chance, a good chance and a second chance. How do we ensure that they get it?
For all of our history, we have been a country of immense space and distances, east and west, north and
south. We were once and we are still a country of immense resources. Most importantly, we are a country of
immense possibilities, a country still in the making, still in the becoming. We knew once, we know now that
whatever we once were, whatever we are now, we will be much more tomorrow.
After more than half a century of great change, of the rise of Japan, China, India and the Far East, of the
rebirth of Europe, of the fall of the Berlin Wall, of the advance of globalism, of rises and falls everywhere,
this is still our story.
We are an optimistic place, a place fundamentally oriented to the future. We do not believe that today's
adult represents the ultimate in human possibility. We do not believe that we live in the ultimate Canada, in
the ultimate world. We are a place that understands that whatever may happen in the world good, bad, whatever
the trends with our space, our natural resources, our human resources, with our institutions, our stability,
our peace, with our get-along instincts, we can make any future work.
Fundamental to this optimism, to our belief in the future, to our confidence as a country, are our children.
If our children are doing okay, we are doing okay and we will be okay.
I look forward very much to hearing the views of your committee on how our children can do better, and I look
forward to working with you in the months and years ahead. I would be pleased to answer your questions.
Senator Poy: Thank you very much, Minister Dryden. In your presentation, you mentioned about early
childhood development that you want to give children a chance and a second chance.
My question is what happens with children who are born with disabilities, such as autism? Is that the
responsibility of your department? How do you deal with it?
Mr. Dryden: What we have set forward with respect to early learning and child care, and the agreements
we have made with the provinces have to do with the joint understandings and joint expectations that we call the
QUAD principles. The "Q" is for "quality." The "U" was once "universality," but, because of the potential
confusion over the definition, it now stands for "universally inclusive." Under that I will talk to you about
what we do for people who have disabilities. The "A" is for "affordable and accessible," and the "D" stands for
It is our understanding and the understanding of the provinces that, in delivering this program, the money
will be used in an inclusive way. It will be used in a way that recognizes that some kids have disabilities and
that the money spent on early learning and child care is to reflect that and is to include those kids.
One challenge is always how to offer the best opportunity for young people. How do you give persons who have
a disability their best chance at the next stages of their lives? There is a clear understanding that, if we are
to do better for children with disabilities at the elementary school level or in the high school setting, they
need to do better at an earlier age. That is part of the understanding with which we approach what we are
looking to provide with the $5 billion over five years. We know that the better we do for those kids with
disabilities at that earlier age, the better chance they have at a later age. Therefore, it is something that we
push not only with the QUAD principles, but also with the understanding of what impact it can have on those
Senator Poy: Does your department monitor what the provinces do? Once you have given the money, do you
have control over how they use it?
Mr. Dryden: It is the obligation of the provinces to make known publicly what they do according to
agreed upon elements for them to report on, and we will use that information. Academics and the media will use
it in certain ways. If this is going to be as ambitious an undertaking as it should be, we need to read into
that information. What does it mean? How far are we going? What is it that we are not doing? What would a
self-respecting system of early learning in Saskatchewan provide? Why are we not doing better in any particular
area? This will be a dynamic environment and enterprise with dynamic ongoing debate and discussion.
Senator Poy: Are you saying that they are required to report back to your department?
Mr. Dryden: They are required to report to their public, according to agreements that we make with all
the provinces on what they are required to measure.
The Chairman: For clarification, I understand from what you said that autism is now covered. Does
money go from the federal government into provincial bases to cover the needs of autistic children before they
reach the age of five?
Mr. Dryden: The provinces themselves have the right and authority to decide how they will spend their
money. The agreements have to do with delivering in those areas of agreement on those QUAD principles, one of
which is inclusivity, that covering, in part, children who have disabilities. The provinces must decide how best
to spend that money. Therefore, I cannot say whether that money will go toward autism.
Senator Oliver: They may decide not to spend it that way.
Mr. Dryden: They may decide not to do that.
Senator Pearson: Thank you for your kind words, Mr. Dryden. I liked your comment that I do what I do
because I like kids. That is true. I like them and, because I like them, I have learned to respect them. Part of
what has driven me on the issues with respect to children's rights is my strong feeling that it is most
important to create a culture of respect for children and children's rights, because it is in that kind of
culture that some of the questions that Senator Poy just raised will be answered. There will be all rights for
all children, as UNICEF says. The rights perspective is a holistic one. You do not make a decision to advance
one aspect of a child without looking at how that will impact on the child's right to the family or the right to
other aspects of life.
My question has to do with the work that I have done for many years in the voluntary sector, before I came to
the Senate. Witnesses we have heard have been concerned about the problems of effective coordination, adequate
funding and so on, particularly for capacity building in the voluntary sector related to children's rights. It
is easier to build capacity in the voluntary sector when dealing with children in hospitals or a specific
charity. However, we have noted the deep concern that has been brought to our attention with regard to the
difficulty of having to compete among themselves for adequate funding to bring forward the voice of children.
In my view, social development is the development of social capital, and social capital is the development of
relationships of trust and so on and so forth, and to some extent we see relations of distrust as one entity
competes against another. What thinking is going on in your department about a more constructive relationship
with the voluntary sector in the nature of the accord that was signed in 2001, I believe it was.
Mr. Dryden: I am not sure how to answer the part about a more constructive relationship with the
voluntary sector. I am not quite sure what that means. We are talking about the rights of children. In moving
toward the rights of children, there is often an assumption that the rights of any human being are not
necessarily understood as being part of being a child, which makes no sense to me at all.
The first thing for me, in trying to understand an approach, is to acknowledge that children are people, too.
As anyone else, children have rights. Disengagement from kids is part of the cause.
What stuns me is that, at any children's conference or a conference where children are represented, the
children who are represented are, in almost every instance, adult versions of children. The voices that they
speak with do not sound like children's voices at all. They sound like mini-adult voices. They sound like voices
that adults understand easily and, therefore, adults are comfortable in the company of those voices. The
speakers are children who realize the importance and responsibility of the occasion, and they attempt to sound
like adults in representing themselves as children. It does not work well.
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?
From that, one starts to realize that we are not just talking about children's rights, we are talking about
rights for any human being and that we want to ensure that all children have those rights. In addition to that,
there may be certain other protections that children need. Most of the time we forget about the vast array of
generally understood rights that any human being should have, and certainly children should have that.
As Canadians, we have certain expectations and understandings of ourselves and of others. As a department,
our job, whether it is for kids or seniors, is to ask ourselves: How are we doing? We should be asking how our
kids are doing in all kinds of different ways. How are our seniors doing? How are people with disabilities
doing? We must not only consider those easy things to measure, but we should ask: What does life feel like? How
do kids feel about their lives? How they are going about living their lives? How are they managing that stage of
life as part of whole life, rather than focussing on a particular problem for which you have offered a
particular solution? We must look at the overall situation covering health, education and everything else, and
put the pieces together. Then we must ask: How are we doing?
Senator Pearson: We should ask them how we are doing. The government is better at listening to older
people than we are at listening to children.
The Chairman: We are studying the Convention on the Rights of the Child. We have heard earlier today
and from other witnesses, that the best way to listen to children is to give them their enforceable rights. That
is what the convention is about: their actual rights.
There has been testimony before this committee to indicate that we care about children, all in our own way,
although we may define it differently. We want to protect children. However, we have not made the rights set out
in the convention legally binding. How does your department or how do you personally feel about the remark that
the best way to listen to children is to give them the rights that that we signed off and said were theirs in
the convention, and make those enforceable as opposed to simply setting them out as a guideline? I am drawing on
your legal background.
Mr. Dryden: Do not draw on that. There is not much to draw on.
I am not sure of the answer to that question. With respect to the department, our authority regarding
children is very limited. Essentially, we deal with early learning and child care and matters related to it.
That is not to say that a department of social development should not be one whose task it is to ask how kids
doing in all of these areas and to respond. As you were saying, children force us to respond in ways in which we
do not otherwise respond.
This is an interesting debate, and I look forward to the opportunity to continuing it.
Senator Losier-Cool: It will come as no surprise to you that I was delighted to hear you say in your
opening statement that initiatives are in the works for Canadians and children living in minority language
I have two questions for you, one theoretical one and one about the current state of affairs.
Several witnesses have suggested to us that Canada should consider setting up an agency or appointing a
childrens ombudsman or commissioner. Would such a move benefit Canada? Has your department ever considered
doing this? I would like to hear your views on this matter.
You also made a reference to the six provinces and territories that have already signed agreements respecting
early childhood services and education. Will the first provinces that signed the agreements be the first ones to
receive some funding?
In other words, if a province has yet to sign the agreement, when can it expect to see the $5 billion?
Mr. Dryden: To answer the last part of the question first, the way the first year funding works, up
until March 31, 2006, is that all of the provinces and territories get their per capita share of the money,
whether or not an agreement has been signed. Those four other provinces that do not currently have agreements,
and the three territories, receive their money as if an agreement had been signed. Only if we do not have an
agreement by March 31, 2006, circumstances may be different. While we are negotiating agreements, no one on the
ground is being put out, because of the time that it takes to complete these agreements.
As to the first part of your question, it is an interesting subject and one that I have been thinking about
for a long time. Senator Pearson and I first met each other when I was as Senator Pearson was in her way and I
was in my way trying to persuade the federal government to create a national youth commissioner. I went
through that process for about two years.
The approach that I took, or what I felt most strongly about in terms of a national youth commissioner, was
that there would be one principal function and activity, out of which many other things might flow, and it was
absolutely central in my mind that that would have an impact. That was an annual report on the state of youth,
or an annual report on the state of children.
What parents or any citizen or any politician wants to know is: How are our kids doing? We want to know in
terms of their health, their education, and in terms of all the other aspects of their lives: How are they
doing? How are they doing compared to last year, compared to five years ago or compared to 20 years ago? How are
they doing compared to kids in other countries? We also want to know how they are doing according to the
standards we have in our heads. As Canadians, we have certain understandings and expectations of what it is to
be Canadian. How are we doing relative to those understandings?
When I was pushing for a national youth commissioner, I wanted to see those questions being asked. I wanted
to see then national youth commissioner then take that information and assess it. What does it mean relative to
the individual, specific lives of kids; and what are the implications of all the information and what are the
implications of each part of that information? What does it mean that a certain percentage of kids are born
prematurely? What implications does that have on the course of their lives? I wanted to see that happen, but I
could not persuade people to do it.
I still believe that that is the central piece that is missing in all of this, that and the desire, the
willingness and the ability to go out and to tell the story. I wanted the commissioner to be able to say, "Here
is what we learned this year about kids and how they are doing. I want to talk about it, and I want to push
ourselves and others to do better." I believe that scenario would have the greatest impact on where we are and
where we would like to go in terms of doing better for kids.
Personally, at this particular stage, and it is easy to say this because, at one time, I was outside of
government. Now I am inside. I think that, done right, it can be done better inside a department than outside of
a department. We can gather that collective story a whole lot easier and a whole lot better. The key is the
collective story. It is not just individual pieces and individual measures, but what they all add up to in terms
of how well we are doing.
Senator Oliver: Now that you are a minister of the Crown and have the power to do it, we will be
watching with great interest. You are the Minister of Social Development, and you are the minister responsible
for early learning and child care. You told us that your powers are quite limited for the types and scopes of
things that you can do in relation to children, but new legislation is coming forward from other departments
that touches upon children. Do you have the power and authority to review that legislation and to do a needs
assessment of that legislation to make sure that it fits within the UN covenant we are studying?
Mr. Dryden: Not specifically our department.
Senator Oliver: Do you not have the implicit authority to do that, given your early learning and child
care role and authority?
Mr. Dryden: In terms of delivering on that part, yes, but one of the real questions for your committee
regarding a commissioner or ombudsman is to ask whether it would be valuable to have some entity within
government that has a perspective on the totality of a life. As we know, lives disrespect jurisdiction. They
disrespect mandates and portfolios. Lives are lived wherever, and one of the challenges that any organization
has, and it is certainly a challenge for government, is not to fragment our approaches. Usually that happens for
good, well-intentioned reasons in circumstances where we see a problem we want to address. Then we see another
problem that we want to address. What cuts across all of that is a life.
Senator Oliver: Minister, you are responsible for early learning and child care. If legislation is
introduced by other departments of the government that affects children, when you sit around the cabinet table,
surely you have the implicit authority to assess that proposed legislation.
Mr. Dryden: I have a voice at the cabinet table, but there is no specific voice within government for
children and youth. We each have our roles, our responsibilities and our specific programs. In delivering those
programs, we try to understand the life of a child in all of its dimensions. Early learning and child care is a
great field in which to work because it cuts across a number of areas. It is easy to imagine how child care
centres become more involved over time in things like health habits and in the way one lives. Many things are
routine. They are just habits. The earlier they become a part of someone's life, the more likely that person
will be able to sustain them. You can imagine how all of that might be part of what is delivered through early
learning and child care. However, with respect to the overall vision for children and youth and how we want our
children to grow up, except at the cabinet table, there is not someone with that specific responsibility.
Senator Oliver: I was interested in the architect tonic, and you say it does not exist in Canada now?
Mr. Dryden: That is right.
The Chairman: I am mindful of the time. You mentioned the cabinet table. One of your colleagues is
waiting, so I will ask Senator Dallaire to put a succinct question, and I am sure that you will reply in like
kind so we do not hold up the next minister.
Senator Dallaire: This will be my first opportunity to be succinct. The briefing paper made note of
street kids, poverty, single parents and the like. I am left with the impression that your department is
continuously dealing with federal-provincial responsibilities, overlapping and coordinating who is responsible
for what. In dealing with the street kids scenario or the high school dropout scenario and the fact that we do
not encourage our youth to go into trades training and we have a dearth of trades training versus manual
labour outright or university do you have an ability to influence in regard to social development and the
potential drain or loss of capabilities that the country will experience because of the lack of interest in
these arenas, or is that out of your realm and diffused amongst others, including the provinces?
Mr. Dryden: Some of that is done through HRSD. However, I think those things would happen at a federal
level through all that would eventuate out of a more global view of children and the life of a child and the
implications of things that happen along the way.
I was Youth Commissioner in Ontario for several years. You talked about the dearth in trades, and so on. In
my final report, I spent more time writing about education than I did about employment and training programs.
What was so clearly the case then, and what is no less clear the case now, was that what we have in our
education system is an academic stream and something that is not an academic stream. It is not a stream. There
are not two streams. There is one stream and one "not," and a "not" does not constitute a stream.
If there is anything in that direction that will be more ambitious, more constructive, and generate a
different kind of result, then it must be approached with the coherence of a stream, that is, something that
teachers, guidance councillors and parents will know about, and something that all of them will talk about in an
excited way. Where is the excitement now in our education system, our high school system, which is away from the
academic stream? There is no excitement. Kids are not stupid; nor are their parents. Kids will not say, "Gee, I
cannot wait to be in this "not" stream." If we want to do better, we must approach it differently.
Having said that, in terms of what our role is here specifically, all of that is in the provincial
jurisdiction. If you tell an annual story of children and youth, then you can start to deal with matters like
that, because a story has no jurisdiction. It has no boundary. The story is like the life. The story holds great
disrespect for boundaries, mandates and portfolios. The influence will lie with whoever carries the story. That
is what I think, to the biggest extent, we are missing now. Our department intends to do something about that.
Senator Dallaire: We just do not seem to have a grand strategic vision of how youth will move forward
this country. Youth are either in academics or they lose out. Germany is proud of its trades skills. We cannot
find people with trade skills. We have to import them.
The Chairman: Minister, thank you for coming here today and for giving us an update on your department
and what you are doing for children. You have identified the fact that there are many actors. We would invite
you to go back and consider how we account to children, namely, through the framework of the convention. We are
looking for ways and means to give life to the convention. You were talking about the importance of a life. We
may have some ability to get at that issue if we embraced the convention. We are looking for ways and means to
Thank you for sharing your information. I hope that you will look forward eagerly to our recommendations
regarding what you can do.
Mr. Dryden: I will.
The Chairman: Honourable senators, we are now pleased to have before us officials from the Department
of Indian Affairs and Northern Development, along with Minister Andy Scott. We are presently examining and
reporting upon Canada's international obligations in regard to the rights and freedoms of children. We would
welcome the minister to our committee. I trust you have a short opening statement so that senators have time to
ask you questions.
Hon. Andy Scott, P.C., M.P., Minister of Indian Affairs and Northern Development:
I should like to introduce Havelin Anand and Daniel Hughes.
As I have said before, it is a pleasure to address members of the Standing Senate Committee on Human Rights.
I spent a little time in the other place chairing the same committee. I could not help but notice the reference
to my predecessors' pronouncements on these subjects before he accepted his current position. Some squaring of
circles or circling of squares has to be done. Anyone who wants to look, will find some interesting references
to what I said when I sat on the kids' caucus with Senator Landon Pearson, but I will not direct you there.
The work of the committee is particularly important in highlighting the provisions of the United Nations
Convention on the Rights of the Child, which is the most universally accepted human rights instrument in
history. First approved in 1989, it was ratified by Canada in 1991 and has since been ratified by 191 countries,
which accounts for all but two of the UN member states. The convention is a universally agreed upon set of
non-negotiable standards and obligations. It spells out the rights to which every child is entitled and
incorporates the full range of civil, political, economic, social and cultural human rights.
In September 2003, Canada appeared before the UN Committee on the Rights of the Child, which oversees
adherents to this instrument. Led by Senator Pearson, the Canadian delegation presented information to the
committee and responded to questions and criticisms. Many of these criticisms centred on the socio-economic
disparities faced by Aboriginal children.
The Standing Senate Committee on Human Rights has shown great leadership not only in ensuring Canadians are
made aware of the rights of the child and the findings of the UN committee but also in highlighting the areas in
which we can do a better job. In particular, I would recognize the leadership and efforts of Senator Pearson in
ensuring the promotion and protection of the rights of the child across the Government of Canada.
As Minister of Indian Affairs and Northern Development and federal interlocutor for Metis and non-status
Indians, I am committed to making Canada a better place for First Nations, Inuit, Metis and Northerners. Such
work must begin with the focus on children. The First Nation, Inuit and Metis population is young and growing
rapidly. These demographics create pressures for additional services, schools, housing and public
infrastructure, and for increases in social services to support the high rate of new family formations.
Given such pressures, as well as the fact that socio-economic indicators for Aboriginal Canadians remain far
behind those of non-Aboriginal Canadians, it is clear that we have a great deal to accomplish in the coming
years in ensuring that all Aboriginal children in Canada fully enjoy the rights articulated in the United
Nations Convention on the Rights of the Child.
More and more, we recognize that only those programs and policies undertaken in consultation and cooperation
with Aboriginal peoples have a chance of being truly successful; that our approach to Aboriginal children's
issues must be inclusive, comprehensive and coordinated; and that Aboriginal Canadians need to be partners with
government in terms of developing solutions. The need for such collaboration and cooperation was highlighted in
April 2004 at the Canada-Aboriginal Peoples Roundtable. This event marked the beginning of a renewed dialogue
between the federal government and Aboriginal peoples. At this historic meeting, more than 80 Aboriginal leaders
from across Canada met with Prime Minister Martin and federal cabinet ministers, some 40 parliamentarians in
all, and agreed to work together to improve the lives of Aboriginal peoples in Canada. At the round table, Prime
Minister Martin said that, if young Aboriginal people do not succeed, then all of us fail.
The Government of Canada is now engaged in post-round-table follow-up on a wide range of issues with
Aboriginal Canadians, including a number of issues with real impact on the rights of Aboriginal children:
health, lifelong learning and housing, to name three. This process led to the May 31, 2005, joint policy retreat
between the Prime Minister, members of the Cabinet Committee on Aboriginal Affairs and the leaders of the five
national Aboriginal organizations. Agreements were reached on directions for change in health, education and
lifelong learning, housing, economic opportunities, negotiations and relationships, and accountability for
In addition, the leaders of the Assembly of First Nations, the Inuit Tapiriit Kanatami, the Metis National
Council, the Congress of Aboriginal peoples and the Native Women's Association of Canada signed joint accords
with the Government of Canada that will ensure their direct involvement in Aboriginal policy development and
form the basis of a new era of cooperation.
I want to speak to developments in the areas of strengthening relationships in negotiations, health, housing
and education, in particular. Investments and policy development in these areas will strengthen Aboriginal
communities and, in turn, benefit Aboriginal children and youth.
The governance powers, land and resource access, capital transfers and other economic opportunities that come
through treaties, land claims and self-government are key to empowering First Nations, Inuit and Metis to be
full partners with federal, provincial and territorial governments in addressing the socio-economic conditions
and needs of their communities. Based on the negotiation sectoral session of the round table process, the
Government of Canada acknowledges the need for a fundamental shift in policy direction for addressing Aboriginal
and treaty rights a direction based on the recognition and coexistence of rights, rather than extinguishment
of rights, and premised on the reconciliation of rights in the context of ongoing and evolving relationships
with First Nations, Inuit, and Metis Canadians.
Education is one of the central, driving forces in Canada's Aboriginal agenda. As senators are aware, young
people and children are the most vulnerable members of any community, but they are also the greatest source of
hope, change and promise for the future. The next 10 to 15 years will see more than 300,000 First Nations, Inuit
and Metis children go through the K12 school system. The future of Canada's Aboriginal communities will largely
rest on the shoulders of these students.
The last 20 years have seen a steady increase in the number of Aboriginal Canadians holding post-secondary
degrees, from about 200 in the late 1970s to over 30,000 today. In fact, the educational attainment of First
Nations constitutes the biggest single stride forward in reducing the gap in socio-economic conditions between
First Nations and the rest of Canada.
That said, there remain significant challenges facing us in Canada: far too many Aboriginal children do not
come to school ready to learn; far too many do not complete high school; many of those Aboriginal students who
do complete secondary education are not prepared to make a successful transition to institutions of
post-secondary education; and those who do make the transition face multiple challenges in successfully
completing post-secondary studies. More must be done to close the unacceptable gap between Aboriginal and
non-Aboriginal students. We are making positive progress and at the May 31 policy retreat I announced a
comprehensive proposal for a staged transformation of education, both on- and off-reserve, to ensure that First
Nation, Inuit and Metis have access to the same level of education services and programs that other Canadians
I should like to diverge from the text for one minute to speak to the community well-being index. The
department has established a measurement tool that would be a variation on the human development index. It
showed that, from the mid-1980s to the mid-1990s there was a closing of the gap. It was not nearly significant
enough, but it was in the right direction. That flattened out between 1996-97 and, if I did not tell you this
the national chief would, that corresponded with coming out of program review, flattening of budgets and so on.
As a result of that exercise, that has happened. I would argue that departmental indications speak to the need
for a significant investment in education in particular, but not exclusively.
Our well-being index also showed us that when the gap was closing between Aboriginal Canadians and
non-Aboriginal Canadians, inside the community the gap was actually widening. Thus, we have macro-statistics
showing the gap closing and micro-statistics showing the gap widening inside the community. That has to do with
rural and remote versus those communities closer to urban centres. This is easily imagined. We are alert to this
and we intend to deal with it head-on.
At the retreat, it was also announced that the federal government will merge and enhance four existing
Aboriginal early childhood development programs to create a new, consolidated early learning and child care
program for First Nations and Inuit children. The early learning and child care program, which will have one
point of access under one federal department a single window, if you will will reduce the administrative
burden on communities, enhance the quality and accessibility of regulated child care for First Nations and Inuit
children, and provide support for parents to explore educational and employment opportunities.
This initiative, which is linked to the national early learning and child care system that the Government of
Canada has committed to build, would provide a natural progression from early learning and child care to K-12
education. Currently, we are in the process of gaining input from First Nation and Inuit organizations that will
guide the design and transition of the new early learning and child care program. We will be working with our
federal and Aboriginal partners in the coming months to implement it.
We also need to reframe how we think about Aboriginal education, and move toward the concept of lifelong
learning as a way of addressing both the core issues of quality education and the directly related questions of
early childhood development, child and family services, adequate housing, parental involvement in education,
youth development and, ultimately, transition from education to the workforce.
We also believe that more focus should be brought to the concepts of cultural appropriateness and
learner-centred approaches to Aboriginal education. Aboriginal language is obviously a large part of this
Canadian Heritage is leading efforts with a task force composed of representatives of national Aboriginal
organizations on recommendations that will lead to the development of a national, comprehensive strategy on
Aboriginal languages and culture for the benefit of Aboriginal Canadians, but also for all citizens of Canada.
Turning to health, it is clear that health issues for First Nations, Inuit and Metis are more than just
medical issues. The Government of Canada recognizes the impact of factors such as economic and social
development, education and housing on the health of Aboriginal children. We are working together with provincial
and territorial governments and Aboriginal organizations on health issues through the blueprint on Aboriginal
health, which will give us an opportunity to ensure that the unique needs of First Nations, Inuit and Metis,
including urban, off-reserve and non-status Indians, are addressed, as well as the specific health needs of
Aboriginal women and children.
A first draft of the blueprint is expected this month and it will lay out a 10-year cooperative agenda to
improve the health status of Aboriginal peoples and health services in Canada. Indian and Northern Affairs
Canada supports this work and recognizes that addressing First Nation, Inuit and Metis health issues will
require dedicated and continuous effort on the part of all partners both within and beyond the health sector.
Building on this new spirit of partnership, the opportunity now exists to create a viable and sustainable
Aboriginal housing industry, an industry that will create a stable investment climate, that will address the
existing backlog for housing for Aboriginal peoples both on and off-reserve, and that will help move First
Nations communities toward market-based housing. The transformation in Aboriginal housing will take place on the
ground as more and more First Nation, Inuit and Metis communities develop innovative approaches to housing and
in fact deliver their own housing. These are key drivers of sustainable community development.
In conclusion, Indian and Northern Affairs Canada, in partnership with First Nations, Inuit and Metis across
the country, is taking an increasingly active role in improving the quality of life for Aboriginal children. I
have outlined a number of new initiatives. I am truly excited about our agenda for change. Never before in our
shared history has the Government of Canada and First Nations, Inuit and Metis been so engaged in a sustained
joint dialogue focusing on pragmatic solutions.
While this work has just begun, the respectful relationship we are building together gives me a sense of
optimism that this relationship will continue to grow and mature as we work together to achieve our shared
objectives and vision of closing the socio-economic gap so that Aboriginal people can fully share in the
benefits that most Canadians take for granted, and that Aboriginal children can fully enjoy the rights
guaranteed to them by the convention.
Thank you very much for your time.
Senator Pearson: Thank you very much, minister, for your presentation. I am most encouraged by the
direction in which everything is moving but, having recently been back to some of the reserves north of Sioux
Lookout, I know the major challenges that remain.
The issues of protecting all rights for all children remain issues that are on the ground. One can make a
generic framework but somewhere within that framework there must be some action. You are going in the right
direction in consultation and so on, but my sense from my experience is that there is a need for community
development, that is, focusing the efforts that one works on community by community. I am not referring to a
community location, I am referring to, say, the community of women, for example, or the community of caregivers
of one sort or another.
What has been clear is that as we have moved, and correctly, to try to give to Aboriginal communities more
responsibility, although we have not been very good at ensuring that the funding that goes with the moves is
adequate to the challenges of that particular population. It has been done in accordance with other criteria. It
is important to retain the children in the community, particularly when remote communities offset any
I think an Aboriginal child's right wherever he or she lives to the same services as another child is
something that we must reinforce.
Mr. Scott: I will try to be as optimistic about this as I can. The formulas that have been driving a
lot of the resource allocation for the department to this point have had the effect of taking kids into care. To
be fair, even outside of the community, if you go back far enough, not nearly as much emphasis was placed on
early intervention and the kinds of things that have now become commonplace in the rest of Canada. We are just
catching up to that, frankly. The formulas tend toward driving us to take kids into care rather than providing
the early intervention that would be more appropriate. I do not think too many people argue the effectiveness
and efficiencies of early intervention; and we would require less demand on resources.
We are just slow. There is no other way to put it. We are getting to where the rest of the country is, but we
are getting there aggressively. Resources will be committed as part of the process in which we are engaged now
with the first ministers meeting in November. I think we will see significant resources dedicated to this task.
My predecessor in this chair, Mr. Dryden, framed my challenge or the challenge of our department. In most
other departments, where there is a will, there is a way; but in this one, where there is a way, there is a
will. Our problem has been that, in the past, we have been unable to articulate the strategy that would have
generated the kind of confidence needed for a significant increase in expenditure or resources, so that we would
get the kind of return that everyone wished to see.
We have taken advantage of a great deal of attention since the round table in April of 2004. The fact that we
are having the first first ministers' meeting on this issue in the history of the country says something in and
of itself. We are taking advantage of that to inform Canadians and my colleagues about what it is we are setting
out to do. It is ambitious and quite exciting. I think the community would speak favourably about what we are
The fundamental underpinning of everything is that we will not solve this problem for the community. The
community will solve the problem; we need to support them, encourage it and resource it, but at the end of the
day these solutions will be found on the ground, as you say. I believe in that. That is where we are going, and
the community is responding.
Senator Poy: In talking about education, you said that the micro statistics indicate a widening gap
within the First Nations communities. Can you expand on that, please?
Mr. Scott: Yes. I will start with the good news. The good news is that the gap is shrinking. The bad
news is that, within the First Nations community, the gap is widening. That is probably related to demographics.
It is related to the fact that some of the communities that are fly-in communities, rural and remote, have
difficulty on the human resource side, the cost side.
A large number of issues come into play. If you tested the educational outcomes generally in Canada, you
would find some of the same challenges when you deal with rural and remote communities, whether they are First
Nations or not.
The community well-being index demonstrated that the indicator that drove the other indicators was,
generally, education. The demographics of the population we are dealing with takes you back to education again,
because the community is so young relative to the rest of Canada. You look at the educational system and wonder
what distinguishes it from the rest of Canada that would give us the outcomes or the lack of outcomes that
distinguish the system.
First, there is less of a system in these communities than exists in the rest of the country. In pre-equal
opportunity New Brunswick in the mid-1960s, I lived in a little village. My father was the chairman of the
school board. They province gave each of the communities a base, which was not very much, and the community had
to find the rest of the money to support its school. There were no aggregated services. It was a stand-alone,
individual school in the village where I grew up.
That is what we see generally speaking in Canada's First Nations communities. They have schools, but not with
the same aggregated supports that exist within the regular school system. They do not have the economies of
scale that go with aggregation. They do not have nearly enough professional development or human resource
strategies, all the things that we take for granted as part of a modern education system.
The government and the community have supported the proposition of building a national network, although I do
not want to make it too bureaucratic. The school systems will exist within provinces because that is the natural
connection. We will have a national network so that there is confidence of numbers and shared experiences across
the country. It will be good for cohesion, confidence, pride of place and pride of identity. At the same time,
from a practical point of view, the direct day-to-day relationship has to be with the provincial departments of
In New Brunswick, there are 15 schools. Currently, their relationship is one school to a school district. In
Fredericton, it is District 18. Each school deals with a school board. They can have no impact on the system in
the way that they could have if we could aggregate the 15 schools in New Brunswick and have the 15 schools deal
with the department of education on questions of HR strategies, cultural sensitivity and such issues that are
critically important. I think that, generally, provincial departments of education would like to be inclusive
and accommodating, but I do not think that the way they are organized now lends itself to that. We are going to
do that, but and there must be a significant increase in resources.
It is hard to compare our educational system, or what serves as a system, with what happens outside of First
Nations communities because, the rest of Canada is 80 per cent urban and 20 per cent rural-remote. Our
communities are 80 per cent rural-remote and 20 per cent urban. We would all recognize that there is a cost to
rural-remote, although I do not know what the factor would be. In order to break even we would have to invest in
the range of 130 or 140 per cent of the national average invested in the regular system just to deal with the
difference in the demographics. There are all kinds of other cost drivers that are, sadly, over-represented
within the community, such as special education.
If we build the system, make the investment and have the patience required to deal with a problem that has
been created over a long period of time and that will not be solved by next June, we can give this community a
fighting chance, and we are committed to doing that. We are supporting this, but the community has come to this
place themselves. They have decided. The community did not choose treaties, health or economic development, the
community said that the most important thing coming out of the round tables was education, and we happen to
Senator Poy: You mentioned cultural appropriateness in education. You talk about one community, but
there are many cultures within one community. How many languages are there within what you call your community?
You have said that Aboriginal languages will be taught.
Mr. Scott: There are at least 10 fewer than there were 100 years ago.
Senator Poy: How many are there?
Mr. Scott: If you apply the notion that was expounded in the Royal Commission on Aboriginal Peoples,
there were 55 to 65 nations. I do not know if that is the number of languages. We will get back to you with that
As the first Maritimer to be Minister of Indian Affairs, I have quickly recognized how big an issue this is
and how many different communities there are. There is not a single cultural presentation, if you like. However,
there are interesting shared ceremonies. I talked about the national network, sharing best practices and so on.
There is a certain magic to diversity. We celebrate diversity in Canada generally, and we should celebrate
diversity as it exists within the indigenous population as well. Language is a struggle. We have lost 10
languages completely in the last 100 years and 10 are seriously threatened. The government will struggle to
figure out what to do about that. In some cases, some of the language groups are stronger and larger in number
than others. As a former commissioner of languages, the value and the importance of language to a culture is not
lost on me.
Senator Losier-Cool: Welcome, Minister. First of all, as you know, I am delighted to be welcoming our
new Senate colleague from New Brunswick, Ms. Sandra Lovelace Nicholas, who has already made a name for herself
in the field of human rights. I am pleased to be her sponsor.
I will be asking you the same question that I put earlier to Mr. Dryden. Specifically, how would you feel
about Canada appointing a childrens ombudsman or representative to coordinate services in the area of
childrens rights and the UN Convention on the Rights of the Child?
Mr. Scott: I listened to Minister Dryden speak to this. I have struggled with this as a machinery
question. I think we would all wish to hold the government to account for performance and have some centre of
responsibility or energy around these issues within the system. Frankly, I have not concluded what is the best
answer. I remember chairing a committee that produced a report on disability in the mid-1990s calling for a
minister of state for disability. We then decided that we wanted a commissioner for disability and that we
wanted an annual report. Minister Dryden was talking about this as well.
The truth is that I do not know.
I know that we need machinery responses to the extent to which some of the issues get lost, even within the
department. For everyone's best intentions, the reality is that it is a large department with a significant
amount of activity and complexity. As a result, we sometimes lose focus. I do not mean to suggest that that is
anyone's fault. My answer is, "I do not know."
Certainly, I know that the AFN, specifically, has advocated for an internal ombudsman, not for children, just
generally, so that the community would have access to an appeal process internally as part of their own
accountability efforts. I believe there is a need for something beyond what we have. I am not certain I know
what that is.
Senator Losier-Cool: Changing the subject, Her Excellency Adrienne Clarkson stated that if money was
no object, she would like all Canadian children between the ages of 12 and 15 to spend time with First Nation
children. Do any student exchange programs like this exist?
Mr. Scott: I am not certain, senator, of specific programs. I believe there is one this fall.
This is in junior high school or high school. We will simulate the first minister's meeting. Aboriginal kids
First Nation, Inuit and Metis will come to Ottawa and simulate the first ministers' meeting. They will
probably do it better than us, unrestrained by some of the practical problems with which we have to deal.
My inability or my lack of knowledge has to do with whether there are exchange programs within the community
to outside the community; or whether there are exchange programs within the communities themselves.
The Chairman: You have pointed out some of the dilemmas and a process that you think will be helpful.
We are studying the Convention on the Rights of the Child which is rights-based rights for children. As you
know, we filed a report about having the Charter of Rights and Freedoms apply on reserve to Aboriginal women. We
are still awaiting action on that. It concerns me that we are still setting aside a Charter application for
negotiations. Where does that leave children with respect to the Convention on the Rights of the Child in
instances where we found that there is less application than we would like across the board? It appears that
there would be even less application in the Aboriginal community because it is not buttressed by the Charter of
Rights and Freedoms. Are those children not more disadvantaged because of the Charter in many cases not being
available and the convention not being applied? Is that not one way to give them their rights?
Mr. Scott: We are looking at a vehicle to advance the situation now, and we are doing that
collaboratively with both the political leadership and advocacy organizations within the communities.
Senator Losier-Cool mentioned the appointment of the newest senator. That gives you some indication of my own
views, given the background of Senator Lovelace Nicholas.
As part of what the next year brings us, I would like to see a much broader application of the values
contained in the Charter as they relate to citizenship review. That has to be done, and I think it will be done.
Part of that package will be an investigation of all those fundamental issues that need to be raised in public.
I do not want to speak about what happened before, because I do not know what the reasons were, who the
people were, or why they felt the way they did, but I think the leadership is now much more open to this than
was the case in the past. I sense, happily, that we will take this issue to a new place.
The Chairman: The Aboriginal community, sometimes through its leadership and sometimes through its own
communities, has reached toward international human rights instruments and mechanisms. Would it not make sense,
therefore, if we are concerned about bringing Aboriginal children up to a standard, that it should be the
international standard? That is where the Aboriginal community has turned. It has gone beyond what goes on in
Canada. Aboriginal peoples see themselves as indigenous peoples. They have taken that initiative. Would not a
signal from the federal government be that you are taking the rights of children, as they are under the
convention, seriously for Aboriginal children as well as for other children?
Mr. Scott: We have to do this collaboratively. You are right; the community is, more and more, seeking
international standards. Again, I do not think it should be lost on anyone that the reason that the rights were
extended in Bill C-31 relates to the legacy of Senator Lovelace Nicholas. That was done in New York. I was a
student at UNB when she and Mr. Hatfield visited. The government was compelled at that point there are other
words used to describe the reaction generally, and more and more that is the case. More and more,
interventions from the community contain those kinds of arguments. We will be doing this together, but it is
part of a broader re-examination. I do not mean a re-examination over a long period of time, either; I mean an
immediate re-examination. That is what the community wants. We need to support it.
This might sound somewhat like it has been argued before, but I think the situation is different now. I have
no evidence of that. I probably do not even have much credibility, having not been around before, but the
community now wants to do this for themselves. I think we should be there for that. We should support it,
encourage it and resource it. It is a different time and place. I do not know why it was not this way before,
but I know it is this way now.
I had this conversation with the leadership, men and women, political leadership and advocates. They are wide
open to opening up these issues. That has not been the case for a long time, if ever.
Senator Dallaire: Mr. Minister, I wish to return to the subject of cultural appropriateness.
Internationally, when we have frictions between cultures, groups and so on and we try to build reconciliation,
some of us have argued that reconciliation in many cases is achieved by the women, the mothers and the youth.
The instrument for the youth is education. I represented the minister of CIDA at the Summit of the Americas in
Quebec City, where the youth expressed without doubt that education was a critical instrument. My experiences
have been with junior rangers and organizations such as that, as well as the northern section of Commanding
Quebec. I have gone through this with that perspective in mind.
One of the great fears of any culture is assimilation, and how it sees itself evolving. We are often attacked
for not necessarily having reconciled with our First Nations the fact that we are both first nations,
considering the historical European base, and how we marry together or have formed a communion to make Canada,
Canada. We have two official languages here, and multi-ethnicity is ever evolving.
Are the youth of the First nations initiating, articulating or supporting a vision that looks to the future,
and not simply trying to defend themselves against an attrition battle that ongoing against their culture?
Modernization and so on can erode cultures. They can sometimes be difficult to maintain. Can there be a
value-added element to this? Do the youth of this country have a vision of this country that is
human-rights-based, reconciliation-based and respectful? I am not talking about tolerance, because I think
tolerance is the most pejorative term that was invented, I am talking about respect for our diversity. Is there
any vision articulating movement that the youth are capturing within the different communities, or is that not
in the cards yet?
Mr. Scott: Not having a point of reference but just a general view of the country from my previous
various perches, I would say that there is a renewed sense of identity. This is emerging following government
policy which was designed to assimilate. I spent a year and a half as the Solicitor General and I know that,
unfortunately, the community is over-represented in the correctional system. We had our greatest success in
dealing with that issue when we introduced culturally appropriate responses. When I left, the most successful
facility we had in Canada was in Hobbema, Alberta, a Cree correctional facility. Not long before that, a
correctional facility was not allowed to have a sweat lodge. I suspect there is now probably one in all
facilities. I only mention that to say that there is a real renaissance in terms of communities embracing what
is essentially them.
I think the rest of the country is also coming around. This is not just a matter of the community reconciling
itself to us, but it is ourselves reconciling to the community. The whole notion of two official languages,
founding cultures and all of that flies in the face of the nature of the history of the country. That is
something with which we all, and even I, have to come to terms. My language was wrong in many ways, but it was
not malicious. We, as a country, have to come to terms with that.
I do not know that the policy changes that took place in May are completely embraced or understood throughout
the government at this point, but they are real and significant. The basis of a negotiation on a land claim or
self-government or a treaty would have been: If you are going to pursue this negotiation and we are going to
settle in the end, the first thing you must do is extinguish whatever claim you might have. That fundamental
shift has taken place. Now, as a matter of general policy, and it probably predated May 31, but as a matter of
stated policy, in accord with various organizations, that is quite a significant shift.
We are recognizing as a government and as a country that this is about coexistence in perpetuity. It is not
something that will be somehow organized out of existence but, rather, it is a celebration of the value added
that is diversity. I agree that "tolerance" is the wrong word.
Senator Pearson: My question is about the single window. My sense from this recent visit is that these
programs, individually, are good, but they do not at all respond to the size of the need. A Head Start program
that takes a child only one-half day a week will not do much good. You need to invest more. What we need, as the
women were telling me, is something seamless that starts from the prenatal nutrition program and goes on from
there. Diabetes is a huge issue in the North. It should all work together. The communities should be able to
say, "This is what we need for our kids." They can talk to one another and say, "My kid is doing well, but what
can I do to help yours." That is more of a comment than a question. This single window concept is new, and I am
not quite sure whether you or your department have had the time to put it all together.
Mr. Scott: It is part of the exercise that we are going through now. As I said, there are four
different programs, and ultimately the intention is to have more consistency on values. First, we do not want to
move away from being nimble enough on the ground to ensure that the differences that exist currently should
continue to exist, but as part of a single purpose. The second part has to do with making it part of a lifelong
exercise, going from prenatal to adult education. We are talking about a system that relates to kids, getting
kids ready for birth, ready for early development, ready for entering the educational system and, to some
extent, ready for going from that community, in many cases, into a broader community for purposes of advanced
education and so on. I would suggest that we have challenges. If there is a series of exercises here, we have
challenges in each one of them, and mostly that has to do with resources. As you say, the programs work, but we
are not scratching the surface in terms of need. There will probably be some value in bringing the programs
together, but I would be very reluctant if we were to lose our flexibility on the ground. They have evolved as
they have to respond to different needs.
The Chairman: Minister, thank you for coming and sharing your new perspectives. We will certainly be
monitoring this issue because we will be introducing an interim report. We will continue our emphasis on
Aboriginal children. We will be watching to see if these words tonight are turned into action. We are looking
for accountability for children. We are all accountable to children, and that is the focus that we will take. We
hope that, in due course, you will have an opportunity to come back to update us on Aboriginal children.
Mr. Scott: I invite everyone to be part of the youth model first ministers' meeting that will take
place in October.
The Chairman: Perhaps your staff could pass the information on to our clerk, and we will circulate it
to the members.
This committee adjourned.