To better protect children

  • May 31, 2022

The Child and Youth Law Section of the Canadian Bar Association, in an update to the UN Committee on the Rights of the Child, says Canada continues to struggle with its compliance with the UN Convention on the Rights of the Child, or UNCRC. Some of the Section’s recommendations are summarized below.

Third Optional Protocol

One of the first issues the Section highlights is that Canada has still not ratified the Third Optional Protocol, which allows children to bring complaints directly to the Committee on the Rights of the Child when they have not found a solution at the national level. Yet there remains a lack of timely, effective and direct mechanisms to redress many children’s rights violations in Canada. The Section gives as a particularly egregious example Canada’s chronic failure properly to fund First Nations’ child welfare. It took for the government 14 years to stop fighting a compensation order issued by the Canadian Human Rights Tribunal for discrimination in a case involving the First Nations Child and Family Caring Society and the Assembly of First Nations.

“Echoing the concerns of Indigenous and other stakeholders across Canada, the CBA called on the federal government to cease any further litigation in this matter and to move forward in the true spirit of reconciliation,” the Section explains. “On December 31, 2021, the parties reached a $40 billion agreement-in-principle to compensate those harmed by Canada’s discriminatory child welfare practices and to fund long-term reform of the on-reserve child welfare system. The agreement has yet to be approved by the Tribunal and Federal Court.”

In cases like this, the Section adds, “there are no direct mechanisms to redress violations of children’s rights under the UNCRC. Domestic remedies to rights violations are also often inaccessible to children. Timely resolutions are unlikely, with the pandemic exacerbating delays in the judicial system. Swift action on ratification of the Third Optional Protocol remains necessary.”

Incorporating the UNCRC into domestic law

By and large Canada has not incorporated the Convention into domestic law, including in the Divorce Act. The government says federal, provincial and territorial laws were reviewed prior to ratifying the UNCRC to ensure conformity. But the Section says conformity is too often superficial and does not prevent some provincial governments from contradicting the UNCRC.

Noting that the federal government enacted the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, in June 2021, “the CBA Section urges the federal government to take steps to enact similar legislation for the UNCRC, including the requirement for an action plan and annual reporting, to send an unequivocal message regarding Canada’s domestic implementation obligations with respect to the Convention.”

Other issues

In its February 2020 report the CBA Section recommended the establishment of an independent national commissioner with the specific mandate of promoting and protecting the rights of children and youth. Later that year Senator Rosemary Moodie introduced Private Member’s Bill S-217 to establish such an office. It died when Parliament prorogued in August 2020, was reintroduced a month later only to die in 2021 when a federal election was called. It appears unlikely to be revived, “leaving a significant gap in the promotion and implementation of children’s rights in areas of federal jurisdiction,” says the letter.

The Section notes similar delays with a previous recommendation that federal, provincial and territorial governments “mandate Child Rights Impact Assessments for all new bills, regulations, policies and budgets that impact the rights and best interests of children.”

Education for judges and lawyers is proceeding at a more satisfying pace, with the three-day national conference for judges on Access to Justice for Children taking place in May 2022. This conference is presented by the National Judicial Institute with the support of the Canadian Judicial Council.

This comes after a handful of other programs including a full-day program on Access to Justice: Recognizing the Rights of Children under the UN Convention that was hosted by the Law Society of Ontario in the fall of 2020. It focused on the importance of children’s participation in justice processes and the implementation of Canada’s obligations under the UNCRC.

The Section believes the best interest of the child should be included “in all legislation, court decisions and policy decisions affecting children.” Children should also have the right to participate meaningfully in court and administrative processes, “encompassing the need to inform children about their participation rights, including their right to independent legal representation.”