Commissioner for Children and Youth in Canada Bill
Second Reading--Debate Continued
November 5, 2020
Honourable senators, I rise today in support of Bill S-210, which is sponsored by Senator Moodie. This bill will establish the Office of the Commissioner for Children and Youth in Canada.
Similar bills have been introduced in the other place in previous sessions. The first iteration was tabled in 2012 by the current Minister of Transport, the Honourable Marc Garneau. The bill was introduced a second time in 2015 by former Minister of Justice Irwin Cotler, and then, in 2019, a version was introduced by the NDP and the Conservatives in turn. That shows that support for this bill transcends political partisanship and that the bill could be quickly passed by both chambers.
Bill S-210 meets a need that has existed for a number of decades. Young people in Canada do not have an independent voice to defend their rights and interests in Parliament. The participation of young people in political life is limited. They do not vote and do not have an effective complaint mechanism if their rights are violated.
Nearly 30 years after the ratification of the Convention on the Rights of the Child, we still do not have a commissioner for children and youth, while more than two thirds of OECD countries do. Canada ratified the United Nations Convention on the Rights of the Child on November 13, 1991.
In consideration of the time available to me here, I would like to boil the convention’s 42 articles down to the following five points. First, all children have the right to a standard of living adequate for their overall development. Second, the best interests of the child shall be a primary consideration in all decisions. Third, children have the right to express their views freely in all matters affecting them, and their views must be given due weight. Fourth, children have the right to enjoy their own culture, practice their own religion and use their own language. Last, Canada has an obligation to take all legislative, administrative and other measures necessary to ensure the rights recognized in the convention.
Thirteen years ago, the Standing Senate Committee on Human Rights studied children’s rights. The main recommendation in the committee’s report, entitled Children: The Silenced Citizens, was to establish a federal children’s commissioner. Canada must remedy the inequalities affecting children and youth in accordance with their rights under the Canadian Charter of Rights and Freedoms.
The tireless work of Cindy Blackstock and the First Nations Child & Family Caring Society proves that our country has not honoured the right of children to an equal education.
Let’s have a look at what is happening in the provinces, using my province as an example. The story of Aurore, the child martyr left an indelible mark on the imagination of Quebecers. Many believed that it was ancient history, part of the folklore. Have things really changed?
A survey by the Institut de la statistique du Québec, or ISQ, focusing on domestic violence in the lives of children in Quebec could not overlook the deep-seated taboo that child abuse still is.
The ISQ conducted four surveys on domestic violence between 1999 and 2019. Nearly 1 in 10 parents still thinks it’s acceptable for a parent to slap a child. However, section 43 of the Criminal Code of Canada still allows parents and teachers to use force to correct a child’s behaviour. It remains a controversial provision in Canadian criminal law.
In recent decades, a growing number of voices have been calling for all forms of corporal punishment inflicted on children or youth to be banned in Canada. Section 43 would have to be removed from the Criminal Code.
Furthermore, Senator Hervieux-Payette took up this file and introduced several versions of bills aimed at better protecting children. Unfortunately, none of them ever passed because of the legislative and electoral cycles.
The death of a 7-year-old girl in Granby, Quebec, on April 30, 2019, shook the entire population and raised concerns about the child welfare system and the support provided to vulnerable families.
In response to this tragedy, the Government of Quebec committed to embarking on an examination not only of youth protection services, but also the law that governs them, as well as the role of the courts, social services and other actors involved.
On May 30, 2019, the Quebec government entrusted this mandate to a special commission known as the “Commission Laurent” after the woman presiding it, Ms. Régine Laurent. The Special Commission on the Rights of the Child and Youth Protection must submit its report and recommendations to the government by March 2021.
To achieve its mandate, the commission is looking at how youth protection services are organized and funded within the health and social services network.
On October 13, the Montreal youth protection branch, the DPJ, sounded the alarm because it is currently in critical need of family-type resources for toddlers in need of protection. Since 2011, the number of family-type resources, commonly known as foster families, has dropped dramatically from more than 900 to fewer than 300.
The following are examples of classified ads that were produced by the youth protection branch to find foster families.
Kevin, age four, victim of physical abuse presenting with language delay, has medical appointments at l’Hôpital Sainte-Justine every two weeks. He needs you to take care of him until his parents’ situation improves. He needs a warm and safe home and someone who is prepared to take him to his appointments and be there for him during times of distress.
Sophia, 18 months, has epilepsy and comes from a neglectful environment. She was temporarily placed in a foster home that already had children in its care. However, the law states that a child has the right to a good placement right away. Help us find Sophia a foster home.
Alexia is two days old and is in hospital going through withdrawal because her mother used drugs when she was pregnant. Her mother is currently in a drug rehabilitation program. Alexia needs you to rock her, soothe her and give her the appropriate care for her condition.
For that reason, dear colleagues, we must collectively contribute to improving the process of taking in children in need of protection.
The Laurent commission is also studying the organization and functioning of the courts with respect to youth protection, either the Court of Quebec’s youth division and its connections with the courts concerning child custody, or the Superior Court, to ensure that the general principles of the Youth Protection Act and children’s rights are being enforced.
What is the current situation in Canada? In September, Le Devoir printed an article entitled “Childhood in Canada is in crisis.” It reported on the findings of two reports, namely the UNICEF report and the report by Children First Canada, which was prepared in conjunction with the University of Calgary. The UNICEF report found that childhood was in crisis in Canada even before the outbreak of COVID-19 and that the public health situation has eroded children’s rights.
Canada ranks low compared to other OECD countries because of its infant mortality rate, which is nearly 1 in 1,000 births, its high suicide rate and the rate of obesity among Canadian children.
Statistics Canada notes that suicide is the second leading cause of death among young people. Although Parliament adopted a Federal Framework for Suicide Prevention in 2012, seven years later, in September 2019, the Canadian Council of Child & Youth Advocates was still calling for a national strategy to combat youth suicide. The council found that the different levels of government do collect data, but they do it independently. How are we to move forward without coordinated data? A commissioner could review the situation and make recommendations on how to address the second leading cause of death among Canadian youth.
As for obesity among Canadian children, the Standing Senate Committee on Social Affairs tabled a report entitled Obesity in Canada in March 2016 in the Senate. More than one third of children are obese or overweight. It is difficult to assess how the government is dealing with this problem. A commissioner could help with this.
The socio-economic disparities in Canada are growing. Pre‑COVID statistics showed that nearly one in five Canadian children were living in poverty. The report prepared jointly by Children First Canada and the University of Calgary offered similar findings. The top 10 threats to child development include food insecurity, poor mental health, delay of vaccinations, physical and sexual abuse, systemic racism and discrimination, and poverty.
It is vital to invest in order to give all children an equal opportunity and ensure intergenerational equity.
In conclusion, some might wonder whether it is up to the federal government to spend money creating a commissioner’s office and how much all that will cost. First, we should understand the cost of the damage done to children whose rights are violated, which includes developmental delays, depressed behaviour, anxiety, difficulty in school and dropping out of school, and suicide.
A 2003 Canadian study assessed the annual cost of child abuse for society at nearly $16 billion. Would we ask firefighters to limit their use of water when fires break out? Given the huge amount of work that commissioners manage to do with so little, we should appreciate the precious guidance that they give to governments and parliamentarians to help us co-exist in a fair and equitable manner.
It is high time for children and youth to be able to fully enjoy their rights and for a commissioner to be there to get justice for them, even though they do not vote.
Honourable senators, given that this bill already has the support of most parties in the other place, should we not suggest a measure to expedite the passage of this bill so that it is given Royal Assent sooner rather than later?
Thank you.
Honourable senators, I rise today to speak to Bill S-210, An Act to establish the Office of the Commissioner for Children and Youth in Canada.
First, I do want to be clear that I completely agree with the intent of this bill. Of course, no one here can argue the importance of giving a strong voice to and legislating protections for all of Canada’s children and youth. I applaud Senator Moodie’s dedication to this goal and what have been tireless efforts towards it. But, colleagues, with respect, I do not believe that Bill S-210 is the solution.
Let me talk a bit about what’s going on in Nunavut with children and youth. Our Representative for Children and Youth tabled in September 2020 their 2019-20 report. It’s a damning report that laid bare a heart-wrenching story of challenges that are faced by Nunavut’s children and youth. A total of 6,438 children of our population of 38,000 are under the age of 18 and currently living in homes receiving income assistance. In Nunavut, 61% of homes are food insecure, and 560 young people are receiving services from the director, meaning they’re being followed by the local youth protection authorities. It further indicated that of those 560 youth, 134 received critical injuries and three died.
Young people spent a cumulative total of 4,304 nights in a family violence shelter, and, tragically, 31% of all suicides in the territory are committed by persons under the age of 20.
The report goes on to discuss the representation of youth in the justice system and truancy rates, which are all within the 60% range, but also notes the massive gaps in data collection when it comes to children and youth. The report tracked the progress being made on past recommendations and made new recommendations. Jane Bates, the Representative for Children and Youth, stated:
The three most prominent things brought to my attention were that some Government of Nunavut employees are not being held accountable for their decisions and/or actions; that by not acknowledging and addressing the abuse that some children experience it is being condoned; and that there is an accepted complacency that this is ‘just the way of the North’ and action does not need to be taken to address arising problems.
Honourable senators, I tell you this not only to highlight the tragic realities and challenges facing the children and youth of Nunavut, but also to highlight how Nunavut’s Representative of Children and Youth is already doing the work proposed in this bill.
When I reached out to Ms. Bates’ office last week, I was disappointed to hear that she had not yet been given a copy of the bill, which I then rectified. This, for me, highlights the lack of consultation surrounding this bill and raises concerns about the coordination between the work of the proposed commissioner and the current child and youth advocates at the provincial, territorial and Indigenous government levels. These questions of jurisdiction and consultation are similar to questions raised during the debate surrounding the Indigenous Languages Act and the act pertaining to Indigenous children in care.
Indeed, the Assembly of First Nations clearly states that legislation affecting Indigenous peoples must not be unilaterally developed. In their brief submitted to the Aboriginal Peoples Committee on April 2, 2019, during the committee’s study on the new relationship between Canada and Indigenous peoples, the AFN says:
It is essential that the processes used to define the terms of a relationship among equals reflect that equality from the outset. This highlights the need for co-development from the beginning, adequately reflecting all perspectives, and mechanisms that respect the differing decision-making structures appropriate to each.
Yet, this bill is limited in its ability to consult adequately due to — and I understand this — the lack of resources available to an individual senator.
It is also troubling to me that the bill seeks to have the commissioner appointed after a period of consultation with leaders in the Senate and House of Commons. Given that the proposed commissioner’s mandate includes five subclauses that specifically mention “First Nations, Inuit or Métis children and youth,” it strikes me that the selection process should allow for Indigenous input. This is particularly important given that the commissioner would be granted powers under section 17(5)(a) to “enter any place of detention or residence for children and youth under control or operation of the Government of Canada” and 17(5)(b) “have direct access, in conditions of privacy, to the children and youth detained in a place described in paragraph (a).”
For Indigenous children in care, how do the provisions that I’ve just mentioned coordinate with provisions laid out in the Act Respecting First Nations, Inuit and Métis children, youth and families, which was passed by Parliament last year? How does this bill coordinate with provisions under the Youth Criminal Justice Act? Would it then give the commissioner free access to detained youth? There is no coordinating amendment that mentions either of these acts in the bill.
I also — and again respectfully — disagree with the assertion in the preamble of this bill that states:
Whereas children and youth under federal jurisdiction — such as First Nations, Inuit and Métis children and youth — do not benefit from provincial and territorial human rights protections ...
I believe that this paints an incomplete picture of the current protections of children and youth. All children, for example, surely, are subject to the Canadian Charter of Rights and Freedoms and, in Nunavut, all children, including Inuit, are protected under the Child and Family Services Act, while the Representative for Children and Youth is governed by the Representative for Children and Youth Act.
In cases where there is confusion created by overlap of federal government, provincial, territorial and Indigenous government jurisdiction, Jordan’s Principle must be applied. Indigenous Services Canada explains that:
Jordan’s Principle makes sure all First Nations children living in Canada can access the products, services and supports they need, when they need them. Funding can help with a wide range of health, social and educational needs, including the unique needs that First Nations Two-Spirit and LGBTQQIA children and youth and those with disabilities may have.
Further, on the issue of providing provincial/territorial protections, the Canadian Bar Association explains that there are:
. . . various provincial statutes regarding child protection, family law, health issues and property and wills and estates, expressly provide that Indigenous children, families, territories and Band Councils be given distinct consideration when applying Canadian law to situations involving Indigenous peoples. Treaty rights and land agreements are also applicable to resolving issues involving Indigenous children. There is a legal and economic distinction between Indigenous peoples living on and off reserve, as well as between those who do or do not have recognised status.
But perhaps the largest gap I have identified in this bill is a lack of a Royal Recommendation. And I asked Senator Moodie about this earlier in this session. Without the ability to appropriate the requisite funds from Canada, I have difficulty seeing how this bill can proceed.
The salary and expenses are briefly mentioned in clause 10, while the salary, expenses and benefits according to the proposed assistant commissioner are discussed in section 15(2-3). I understand that Senator Moodie has tried to address this in section 38(2) wherein it states:
No order may be made under subsection(1) unless the appropriation of moneys for the purposes of this Act has been recommended by Governor General and such moneys have been appropriated by Parliament.
However, this bill also lacks the structure and accountability measures that must accompany any federal office. This is not simply creating two new positions to be placed under the purview of a federal ministry or department. It is proposing to create a stand-alone office that would create independent reports to Parliament and to the public.
Let’s look then at the most recent example of this, the creation of the Office of Commissioner of Indigenous Languages. The act respecting Indigenous languages received Royal Assent on June 21, 2019. In it, sections 12 through to 44 are dedicated to the establishment of the office. It enables the commissioner to hire support staff and buy office supplies. It lays out provisions surrounding financial audits, financial reporting and fiscal safeguards to protect against the misappropriation of public funds. All of this, colleagues, is missing from Bill S-210.
Honourable senators, please understand, I am not against protecting youth. I do, however, feel that this bill falls short of its stated goal. The fact is that an individual senator’s office lacks the resources required to properly consult on such a massive undertaking. A federal commissioner for children and youth would require coordination across federal, provincial and territorial and Indigenous jurisdictions, and their office would need to have clearly defined fiscal parameters and safeguards. It would also require further coordination with existing legislation.
I commend what Senator Moodie is hoping to achieve with this bill. I hope my comments are helpful, perhaps in improving the bill or in suggesting other paths forward. But I believe that it is the government that should take up this initiative. It is the federal government that would have the resources to fill the gaps within this bill. So I would encourage the government to bring forward legislation to address the concerns raised by Senator Moodie in this bill. And I would urge her to marshal her considerable energies and enthusiasm about this project to getting someone in the other place, preferably on the government side, to introduce a bill of this scope.
Thank you, honourable senators.
Senator Moodie, you have a question?
Would Senator Patterson take a question?
Would you take a question?
Yes.
Thank you, Senator Patterson, for your remarks. Being familiar with the report from the Representative for Children and Youth in Nunavut and the dire situation facing our children there, let me say that the children in Nunavut are fortunate to have you as their representative.
I have a comment and then a question. I do agree that this is something that ultimately the government must support and probably should have undertaken. But my work in understanding how to bring this issue forward, and with a goal to both raise the profile and to push the government to action, convinced me that this was the best way to do it, because the government showed no interest when I first approached them.
Like you, some have raised the Royal Recommendation issue, which led us to find the coming into force clause that allows this bill to go through both chambers. To use this clause is not a new idea. Former Senators Grafstein, Peterson, Gill, and Mitchell, as well as Senator McCoy, have used this clause. In fact, Senator Mitchell most recently used it for Bill S-229 and was successful in having his bill adopted through integration in a government bill.
We have seen, too, that where the coming into force clause has been challenged as a point of order, both in this chamber and in the other place, on all occasions it has been ruled in order. It sets the stage for the Crown to recommend these funds, without placing the obligation for the Crown to do so.
This path was the chosen path. It’s a tough path and certainly, considering the lack of action from the government and the priority we must place on our children, I believed it was worth a fight.
Despite your concerns, which I will be taking some time to carefully consider, do you believe that this bill is sound in principle and ought to proceed to committee where some of the issues that you have raised and other issues may be discussed and resolved?
Thank you for the question, Senator Moodie.
Do I believe that the bill is sound in principle? If the principle is working to increase protection for our youth, then, of course, I believe this is a sound principle, and I believe I said that at the outset. I certainly agree with the intent of the bill.
I’m just concerned that we will put a lot of energy and valuable time into developing this bill, but we won’t get anywhere until we have that commitment from the government. We either need it ahead of this bill or when this bill is referred to the House of Commons, if it passes in the Senate.
Let’s focus on getting that commitment from the government for a worthwhile project. There are other ways of doing that, Senator Moodie. There are inquiries and there are motions that I’m sure we would all eagerly support. I’m also concerned that the massive consultation that I’ve outlined, that I think is required particularly in Indigenous communities, is a huge task for a senator’s office.
Senator Patterson, I’m sorry, your time has expired. Are you asking for additional time?
No, thank you.
