Continuing Committee of Officials on Human Rights Meeting with civil society and Aboriginal organizations. Brief submitted by UNICEF Canada

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1 Continuing Committee of Officials on Human Rights Meeting with civil society and Aboriginal organizations Brief submitted by UNICEF Canada 20 November 2012 Introduction UNICEF Canada commends the Continuing Committee of Officials on Human Rights for consulting civil society organizations on how Canada can approach its response and follow up actions to the United Nations Convention on the Rights of the Child and other treaties recently reviewed. As one of the most affluent and politically stable nations in the world, Canada has the conditions to demonstrate progressive steps to advance the well-being of children, and incorporating human rights principles and approaches will improve the impact of our nation s investments in children. UNICEF Canada proposes that the federal and provincial/territorial governments focus on several feasible measures to build good governance for children and adopt several cost-conscious steps to address legal, policy and service provisions that are achievable over the next one to two years. About UNICEF UNICEF is the world's leading child-focused humanitarian and development agency. Through innovative programs and policy support, we save children's lives and secure their rights in virtually every country. UNICEF is entirely supported by voluntary donations and helps all children, regardless of race, religion or politics. As an intergovernmental organization and the only organization named in the United Nations Convention on the Rights of the Child as a source of expertise for governments, UNICEF has exceptional access to those whose decisions impact children s survival and quality of life. Our global reach, unparalleled influence and diverse partnerships make us an instrumental force in shaping a world in which no child dies of a preventable cause. For more information about UNICEF, please visit A. Good governance for children Introducing some governance processes that would assist decision-makers in considering the needs of and impacts on children would complement and strengthen the work of government, in both executive and legislative branches. They would enable a focus on children that is sometimes overlooked in adult-oriented governance systems. Many comparable governments (e.g., across the UK, in Australia and New Zealand) 1

2 have made fairly simple, feasible changes to make governance processes more fit for children. What is at stake is the place of children in our aging, economically constrained societies. UNICEF Canada proposes the following measures to adjust the way a political system made for adults can better take into account children s needs and rights. 1. Child rights impact assessment recommend that Canada: ensure that the principle of the best interests of the child is appropriately integrated and consistently applied in all legislative, administrative, and judicial proceedings as well as in all policies, programs, and projects relevant to and with an impact on children. (para. 35) develop an integrated strategy for training on children s rights for all professionals, including, government officials, judicial authorities, and professionals...on the use of the Convention in legislation and public policy, program development, advocacy, and decision making processes and accountability. (para. 15) One approach to ensure children s best interests are given priority consideration and that potential discriminatory impacts are regularly taken into account is through the use of standardized Child Rights Impact Assessments. A Child Rights Impact Assessment (CRIA) can be defined as: a systematic process or methodology of ensuring children s best interests and the potential impacts of policy change upon them are considered in the policymaking process. CRIA involves examining a proposed law or policy, administrative decision or action in a structured manner to determine its potential impact on children or specific groups of children, and whether it will effectively protect and implement the rights set out for children in the Convention on the Rights of the Child. i The Government of New Brunswick has initiated a process to do so, and we encourage other jurisdictions to explore this approach. Recommendation A1: That Justice Canada and the Public Health Agency of Canada (the existing lead departments for the federal implementation of the Convention) collaborate to develop a standard approach for Child Rights Impact Assessments and train and support other federal departments in conducting Child Rights Impact Assessments; that the Continuing Committee of Officials on Human Rights facilitate information-sharing on the practice so that other provinces and territories may be encouraged to develop this approach. 2

3 2. Data collection, monitoring and reporting Set up a national and comprehensive data collection system and to analyse the data to help design policies and programmes. (para. 21) In Canada, complex data collection systems employ different definitions, concepts, approaches, and structures across provinces and territories which make it difficult to assess the state of children and the impact of policies and programs on that. There is no national data system that regularly and comprehensively collects information on all dimensions of the situation of children that are relevant for the implementation of the Convention, for children from birth to age 18. The federal and provincial/territorial governments and various research institutes and organizations publish detailed data on certain aspects of child well being for certain age groups. The difficulty in both aggregating and disaggregating data on children is due in part to disparate data collection systems that utilize different definitions, concepts, approaches and structures. Some data collection systems fail to disaggregate children from adults (e.g., Statistics Canada employment data); others employ arbitrary age limits inconsistent with the Convention s definition of a child (e.g. Census data on children up to age 14 in foster care). In aggregate, there is no clear picture of the state of children to inform the public or guide broad policy-making and governance decisions. In 2007, the Senate Committee on Human Rights expressed regret at the lack of a coordinating mechanism to bring [existing] research [and data] together to create a national portrait of children in Canada. The effective use of data to inform public awareness and parliamentary priorities is extremely limited. The federal government should support stakeholder consultations to develop indicators and a database that would be sufficient to allow independent users to assess the situation of children across the comprehensive conditions of childhood in the framework of the Convention, including disaggregated information on the situation of different vulnerable groups of children in different parts of the country. This should be done in cooperation with provincial/territorial governments and in broad consultation with civil society organizations that work with children and with researchers. A national database should be robust and reliable enough to address continuing sources of disagreement over accuracy of data, as we have now in childcare, child poverty and the level of allocation of national resources to services for children. Recommendation A2: That the federal government support convening a multistakeholder group to develop a system for gathering and analyzing data so that a wide range of stakeholders and governments have data to inform the effective allocation of resources in programs and policies. 3

4 3. Allocation of resources and budget monitoring establish a budgeting process at the national, provincial and territorial levels, with clear allocations to children in the relevant sectors and agencies, specific indicators and a tracking system. In addition, the Committee recommends that the State party establish mechanisms to monitor and evaluate the efficacy, adequacy and equitability of the distribution of resources allocated to the implementation of the Convention and make sure that those budgetary lines are protected even in situations of economic crisis... Providing a clear account of what governments spend on children, at least in direct benefits, programs and services, is a simple fiscal management practice. It can be introduced at all levels of government to provide elected and administrative officials as well as the public with an understanding of what proportion of government expenditures are invested in children, if this is intergenerationally fair and sensible, and if investments are achieving value for money in terms of impact on children s well-being. A number of models to do so exist in other countries. In some countries where governments fail to achieve such transparency in fiscal reporting, independent budget monitoring activities have arisen. Recommendation A3: That the federal, provincial and territorial governments produce a budget statement with each budget to indicate the investments in children (those with direct or significant impacts). 4. Follow up and reporting on CRC Concluding Observations Given there are a number of feasible (low-cost and immediate) steps that can be taken to respond to the evidence provided by Canadians on CRC implementation, echoed in the Concluding Observations of the CRC review, as well as ongoing initiatives for children, UNICEF Canada encourages the IWGCR and the CCOHR to coordinate an implementation plan and public annual progress report on implementation. This would also respond to the following recommendation from Canada s 2009 UPR: UPR Recommendation (partly accepted): Create or reinforce a transparent, effective and accountable system that includes all levels of the government and representative of the civil society, including indigenous people, to monitor and publicly and regularly report on the implementation of Canada s human rights obligations (Portugal); An example is the Welsh Assembly Government s Getting it Right: United Nations Convention on the Rights of the Child This is a five-year rolling Action Plan for Wales setting out 16 priority actions (based on stakeholder consultation) for the Welsh Assembly Government in response to the 2008 Concluding Observations. As the 4

5 government states, Our vision is that by the time of the next review of progress on the part of the UK State Party by the UN Committee we are able to demonstrate significant progress. Similarly, the Scottish Government produced Do the Right Thing: A response by the Scottish Government to the 2008 concluding observations from the UN Committee on the Rights of the Child. As the government states, The concluding observations make 142 separate recommendations that cover many aspects of children s lives. The Scottish Government has committed to responding positively to these recommendations and there is already much work ongoing throughout government that addresses the issues raised by the Committee. We recognise that we will not be able to fulfil all the recommendations to their fullest extent immediately but the purpose of this document is to provide a list of priority actions that the Scottish Government will take in the short to medium term. In recognising that there is still progress to be made, it is important to acknowledge the excellent work that goes on every day in Scotland to promote and support the rights of children there is a huge amount of commitment and enthusiasm for making sure the best interests of the child are paramount and ensuring the voices of children and young people are heard and taken account of. Recommendation A4: That the IWGCR and CCOHR coordinate an implementation plan for the CRC Concluding Observations within a year, including robust stakeholder consultation, and report annually to the public on progress. B. Feasible priorities in policy, legislation and programs 1. Equitable approaches to Indigenous children Take immediate steps to ensure that Aboriginal children have full access to all services and receive resources without discrimination. (para. 33) Address disparities in access to services by all children facing situations of vulnerability, including ethnic minorities, children with disabilities, immigrants and others; (para. 33) Take immediate steps to ensure that in law and practice, Aboriginal children have full access to all government services and receive resources without discrimination; (para. 33) The shared responsibility for children s rights, including access to health care, protection and education, across federal departments and between federal and provincial/territorial governments and, increasingly, shared with First Nations governance bodies is a challenge to effective coordination and can result in disparities in the provision of, access to and benefits from such services, particularly for First Nations children for whom the funding and provision of services is statutorily organized differently than for other Canadian children. 5

6 There are two feasible steps that federal, provincial and territorial governments can take in unison and in collaboration to address this. One is to strengthen Jordan s Principle policies; the other is to develop a supportable equitable funding approach. One of the ways in which Parliament intended for disparity to be addressed is through effective implementation of Jordan s Principle. ii Jordan s Principle was adopted as an all-party motion in the House of Commons in It is a child-first principle to guide the resolution of disputes about the provision of services for children within and between federal and provincial/territorial governments in Canada. Where there is a lack of agreement about which jurisdiction should fund or provide a service, a frequent occurrence for First Nations children, Jordan s Principle calls on the government of first contact to put the best interests of the child first and fund the service without delay, then seek reimbursement through a resolution process. Jordan s Principle was intended to apply to all government services available to children, such as education, health, special needs, child welfare and culture and language services. However, it appears that while federal and provincial governments have progressed in establishing certain agreements or protocols to implement Jordan s Principle, there are missing elements that contribute to confusion among stakeholders; concerns that the implementation is construed in a far more limited scope than Parliament intended; and potential continuing inequity if the policy is inconsistently implemented in each jurisdiction through unduly varying agreements and protocols. While almost all provinces and territories have adopted Jordan s Principle, independent assessments - such as that undertaken by the Canadian Paediatric Society - suggest that Jordan s Principle is not fully operational in any province or territory or by the federal government. Implementation should, in our view, include the adoption of a policy, an implementation strategy and a dispute resolution process. Specifically, the following elements should be incorporated in every jurisdiction to support effective and full implementation of Jordan s Principle, and with the resulting benefits of reducing confusion among important stakeholders and meeting human rights standards of transparency and accountability: a common and properly scoped definition of Jordan s Principle, including when/how a claim will be identified as subject to Jordan s Principle; standards for response time; a clearly identified focal point to receive queries; a transparent and consistent process for the resolution of claims, including standardized comparison and assessment methods; an independent oversight body; an appeal process rooted in procedural fairness; sufficient and designated financial and human resources for policy implementation, including a budget for adjudicating (as distinct from servicing) claims; regular access to training and capacity building amongst government officials and other relevant governance bodies, such as First Nations agencies; and 6

7 a process of monitoring and evaluation, including regular, public reports on case management and outcomes. Recommendation B1a: That the federal and provincial/territorial governments work together to fully implement Jordan s Principle according to enhanced implementation standards and protocols developed in collaboration with key stakeholders. This would also respond to the following 2009 UPR recommendation: UPR Recommendation (accepted): Seek to demonstrate that challenges presented by relationships between its federal, provincial and territorial governments do not present unnecessary obstacles to the fulfillment of treaty obligations (United Kingdom). Inadequate and inequitable funding for the education, protective welfare and health care of First Nations children in comparison to other Canadian children continues to be a concern and has been raised by parliamentarians, independent bodies such as Canada s Auditor-General and professional organizations, and subject to reviews and reports by federal officials. Allegations of inequitable funding particularly in relation to on-reserve child welfare services have been the subject of a complaint brought before the Canadian Human Rights Tribunal, an ensuing appeal to the Federal Court, and most recently a pending appeal to the Federal Court of Appeal. While new and existing programs continue to provide, and in some cases enhance, funding for particular services for First Nations children living in reserve communities, it is unclear whether such measures constitute or are based on equitable funding. Equitable funding is a concept that is variously interpreted, and unless an approach to funding is developed that is broadly understood and supportable, this approach to address discrimination in service provision and/or impact will continue to be challenged in the courts and in the court of public opinion. It is difficult to separate children s rights to the equitable provision of services from the equitable funding of such services, and from the equitable impacts of such services in terms of outcomes for children. However, a transparent and consistent approach to funding interventions for First Nations children, regardless of which duty-bearers provide the funding or the services, should be developed that can in principle be applied to health care, education, child welfare and other government-supported services for children in Canada. For example, how will parity/disparity be defined (per capita spending?)? What formula is in place for sustainability, so that as for example provincial funding for education increases, parity or equity is sustained for First Nations children? The equitable funding approach should include the following principles: secure, sustainable, transparent in formulation; consistently applied; supportive of culturally appropriate service provision; enabling of equitable outcomes for First Nations children in comparison to other Canadian children; monitored and reported on; subject to independent review; and delivered through accountable governance mechanisms. Recommendation B1b: That the federal government review and develop an approach to equitable funding for services provided to First Nations children, in 7

8 consultation with First Nations, to support better health, child welfare, educational and life outcomes. This would also respond in part to the following 2009 UPR recommendations: UPR Recommendation (accepted): Establish policies to improve healthcare and general welfare of indigenous children (Indonesia). UPR Recommendation (accepted): Continue policies and programmes aimed at reducing inequalities that still exist between the Aboriginal, recent immigrants and other Canadians (Vietnam). UPR Recommendation (partly accepted): Strengthen and enlarge existing programmes and take more and specific measures towards Aboriginals, particularly with regard to the improvement of housing, educational opportunities, especially after elementary school, employment, and that women s and children s rights are better safeguarded, in consultation with civil society (The Netherlands). 2. Children s employment Establish a national minimum age of 16 for employment, which is consistent with the age of compulsory education; Harmonize province and territory legislation to ensure adequate protection for all children under the age of 18 from hazardous and unsafe working environments; Take steps to establish a unified mechanism for systematic data collection on incidences of hazardous child labour and working conditions, disaggregated by age, sex, geographical location and socio-economic background as a form of public accountability for protection of the rights of children; and Consider ratifying the ILO Convention No. 138 on the minimum age for admission to employment. (para. 80) Canada s governments have embarked on a process to explore ratification of ILO 138. UNICEF Canada urges all levels of government to build on best practices to protect children in work and promote working conditions supportive of their healthy development. Evidence from provinces where low or no standards exist as well as the views of children themselves should inform legislative and policy reform. Standards related to permitted industries, jobs and tasks; conditions of work (e.g., hours per day/week, excluded hours, ages); permitting, oversight and monitoring; complaints and remedies; and education and awareness should be strengthened in all jurisdictions to a higher common denominator. Above all, the best interests of children should guide the process, which also has the by-product of contributing to stronger Canadian economic competitiveness. 8

9 Recommendation B2: That the federal and provincial governments use a Child Rights Impact Assessment of legislation and policy in relation to children s employment and develop a reform agenda. This would also take into account the following recommendation from the 2009 UPR: UPR Recommendation (accepted): Ensure the full implementation of legislation prohibiting discrimination in employment and all discriminatory practices in the labour market and that further measures be taken to reduce unemployment among minority groups (Egypt). 3. Use of tasers on children recommend that Canada: Develop guidelines for restraint and use of force against children in arrest and detention for use by all law enforcement officers and personnel in detention facilities, including the abolishment of use of tasers. (para. 86) Despite claims to the contrary, there is ample anecdotal evidence of the misuse of force against children by law enforcement agencies. Tasers sometimes feature in such incidents, and there is no evidence that reasonably supports the use of tasers on developing young people. Recommendation B3: That a policy be explicitly adopted by all law enforcement agencies in Canada to ban the use of tasers on children under age 18, unless scientific evidence sets a higher age, supported by training in alternative forms of restraint and case management of children. This is also supported by the following recommendation of the 2009 UPR: UPR Recommendation (accepted): Submit to scrutiny the regulations governing the use of Taser weapons with a view to adopting legislation that would explicitly place them in the category of weapons and prescribe more rigorous procedures for their possession and use (Italy). 4. Detention of children bring the juvenile justice system fully in line with the Convention, including Bill C-10 (2012 Safe Streets and Communities Act) in particular articles 37, 39 and 40, and with other relevant standards, including the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines for the Prevention of Juvenile 9

10 Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Vienna Guidelines for Action on Children in the Criminal Justice System; and the Committee s General Comment No. 10 (2007) (CRC/C/GC/10). In particular, the Committee urges the State party to: (a) Increase the minimum age of criminal responsibility; (b) Ensure that no person under 18 is tried as an adult, irrespective of the circumstances or the gravity of his/her offence; (c) Develop alternatives to detention by increasing the use of extrajudicial measures, such as diversion and ensure the protection of privacy of children within the juvenile justice system; (d) (e) Conduct an extensive study of systemic overrepresentation of Aboriginal and African Canadian children and youth in the criminal justice system and develop an effective action plan towards eliminating the disparity in rates of sentencing and incarceration of Aboriginal and African Canadian children and youth, including activities such as training of all legal, penitentiary and law enforcement professionals on the Convention; (g) Ensure that girls are held separately from boys and that girls are monitored by female prison guards so as to better protect girls from the risk of sexual harassment and assault. (para 86) All these recommendations work toward using detention as a last resort, and ensuring that conditions of detention are humane and rehabilitative for young people. The federal government has moved a step toward a legislative mandate to withdraw its reservation to article 37(c), with Bill C-10. The reservation to article 37(c) may be subsequently removed, but there is still a gap between legislative intent and ensuring appropriate detention facilities for young people which are close to home, avoid frequent moves, ensure access to quality education and mental and social care and development, and provide protection and safety. At the same time Bill C-10 will usher in provisions that are widely expected to increase the number of youth in detention. Recommendation B4: That the federal government review the amendments in Bill C-10 to refine the broad scope for which increased detention will apply for youth in conflict with the law. All governments should exempt children up to age 18 from adult sentences. For youth who are detained, the federal government should withdraw its reservation to article 37(c) and ensure that youth are no longer detained with adults. Federal and provincial governments should establish a plan to improve the conditions in youth detention centres, including the provision of mental health services, sufficient rehabilitation services and improved protocols and staff training in behaviour management. Access to family and community must be a high priority in decisions regarding placement and location of youth detention centres. This also responds to the following recommendation from the 2009 UPR: UPR Recommendation (accepted): Alter detention and prison facilities as well as standards of treatment for juveniles so that they are gender sensitive and ensure effective protection of detainees and prisoners personal safety (Czech Republic). 10

11 5. Treating children on the move according to their best interests bring its immigration and asylum laws into full conformity with the Convention and other relevant international standards and reiterates its previous recommendations (CRC/C/15/Add.215, para 47, 2003). In doing so, the State party is urged to take into account the Committee s General Comment No. 6 on the Treatment of unaccompanied and separated children outside their country of origin (CRC/GC/2005/6, 2005). In addition, the Committee urges the State party to: (a) Reconsider its policy of detaining children who are asylum-seeking, refugees and/or irregular migrants; and ensure that detention is only used in exceptional circumstances, in keeping with the best interests of the child, and subject to judicial review; (b) Ensure that legislation and procedures use the best interests of the child as the primary consideration in all immigration and asylum processes, that determination of the best interests is consistently conducted by professionals who have been adequately such procedures; (c) Expeditiously establish the institution of independent guardianships for unaccompanied migrant children; (d) Ensure that cases of asylum-seeking children progress quickly so as to prevent children from waiting long periods of time for the decisions; and (d) Consider implementing the United Nations High Commission for Refugees Guidelines on International Protection No.8: Child Asylum Claims under articles 1(A)2 and 1(F) of the 1951 Convention. In implementing this recommendation, the Committee stresses the need for the State party to pay particular attention to ensuring that its policies and procedures for children in asylum seeking, refugee and/or immigration detention give due primacy to the principle of the best interests of the child and that immigration authorities be trained on the principle and procedures of the best interest of the child. (para. 74) This appears to constitute a long list of challenging tasks, but it is essentially about designing any immigration legislation, policy or administrative process with an explicit consideration of the best interests and differential treatment of children under age 18. There have been improvements over the years in some legislative and administrative measures, but there are several steps needed to comply with international standards and to provide children with humane treatment. There are guidelines and training on particular practices for particular stages or aspects of treatment of children on the move, but there is no comprehensive, national strategy or policy for migrant children, nor specifically for unaccompanied and separated asylumseeking children. There are protocols and practices in some particular ports of entry and in some provinces, but no overarching set of principles, guidelines and practices from point of entry to settlement or removal, from coast to coast. For example, there is no common approach to how and when a Designated Representative is identified and a guardian is established. A Memorandum of Understanding in Ontario addresses two particular points of entry. This does not constitute a standard, universal arrangement. 11

12 Recommendation B5: That the federal government reform the IRPA to apply the best interests of children as a principle in all decisions and mechanisms for the treatment of children, and expand the grounds to take them into account in the treatment of parents with children; expand and consolidate its current guidance for the treatment of children in all stages/aspects of the immigration process into a Best Interests Determination guide, using accepted international guidelines for determining the Best Interests of the Child; reform policy to further limit the use of detention for asylum-seeking children to exceptional circumstances and only when it is in the best interests of the child, for a short time, subject to independent review and monitoring, and reform the changes in Bill C-31 to increase the age of exemption of children from 16 to 18. That provincial governments expand the mandates of independent Child and Youth Advocates to address administrative barriers to enrolment in school, corrections of identity documents, and other common concerns of children on the move. 6. Statelessness review the provisions of the amendment to the Citizenship Act that are not in line with the Convention with a view to removing restrictions on acquiring Canadian citizenship for children born abroad to Canadian parents (para. 41) A 2009 amendment to the Citizenship Act places significant limitations on acquiring Canadian citizenship for children born to Canadian parents abroad, and for their children. Such restrictions can in some circumstances lead to statelessness, and certainly make it and the rights that come with citizenship more precarious. There are other policy solutions to address concerns related to citizenship of convenience that should be explored rather than imperiling the rights of certain children. Recommendation B6: That the federal government reform the Citizenship Act to restore the rights of children who may be otherwise stateless, and explore other policy levers to address the core policy problem such as financial incentives or disincentives and other reforms to migration and residency legislation. i For more information, see: ii The Canadian Paediatric Society reviewed the implementation status of Jordan s Principle in its 2012 report, Are We Doing Enough? A status report on Canadian public policy and child and youth health, which is accessible at: 12