November 5, 2020 - Second Reading--Debate Continued - Commissioner for Children and Youth in Canada Bill

Hon. Dennis Glen Patterson:

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.

Hon. Rosemary Moodie:

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?

Senator Patterson:

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.

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