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Bill S-210 - Commissioner for Children and Youth in Canada - Second Reading

Honourable senators, I rise today to speak at second reading of Bill S-210, An Act to establish the Office of the Commissioner for Children and Youth in Canada. I would like to thank Senator Moodie for the work that she has put forward with this bill.

I approached this bill through the lens of decolonization, as I do with all bills that impact Indigenous peoples. As is stated in the Calls for Justice in the National Inquiry into Missing and Murdered Indigenous Women and Girls’ final report, the decolonizing approach:

. . . is a way of doing things differently that challenges the colonial influence we live under by making space for marginalized Indigenous perspectives . . .

Those perspectives are often cast aside. In describing decolonizing approaches, the report states that they:

. . . involve recognizing inherent rights through the principle that Indigenous Peoples have the right to govern themselves in relation to matters that are internal to their communities; integral to their unique cultures, identities, traditions, languages, and institutions . . . and with respect to their special relationship to . . .

Those approaches also recognize Indigenous peoples’ special relationship to the land.

Our approach honours and respects Indigenous values, philosophies, and knowledge systems. It is a strengths-based approach, focusing on the resilience and expertise of individuals and communities themselves.

It goes on to say:

We demand a world within which First Nations, Inuit, and Métis families can raise their children with the same safety, security, and human rights that non-Indigenous families do, along with full respect for the Indigenous and human rights of First Nations, Inuit, and Métis families.

Colleagues, the following information largely comes from several meetings I held with Senator Moodie, officials from the Assembly of Manitoba Chiefs and senators from Manitoba. These meetings took place on April 22, October 5 and October 15, 2020.

One of the biggest problems surrounding this bill is the ever-present issue of jurisdictional divisions of power. Children’s Rights: International and National Laws and Practices, published by the Law Library of Congress Canada in 2007, states:

Since Canada’s various Constitution Acts do not assign the subject of children to either level of government, it is essentially split, with each level covering children as part of the jurisdictions conferred upon them.

The author continues:

Since Canadian constitutional law does not generally permit the federal government to legislate over matters that fall under provincial jurisdiction even for the purpose of implementing an international agreement, Canada makes reservations to this effect if implementation would require provincial cooperation.

It goes on:

Federal law does not generally supersede provincial law. Instead, each level of government regulates employment in fields within its jurisdiction.

Colleagues, children’s issues include child health and social welfare, education, child labour and exploitation, child abuse and trafficking, juvenile justice and children in care, which fall under provincial jurisdiction. Children and youth who have treaty rights continuously fall into the provincial-federal jurisdictional gap, which resulted in the death of Jordan Anderson, a young child who had treaty status but passed away during an ongoing dispute over his care between the province and Canada. Only after his death did they settle on a process, Jordan’s Principle, but most senators know this.

You certainly understand my reservation on any federal bill that attempts to address issues under provincial jurisdiction, yet there is no mention of the role and relationship between Canada and the provinces and territories in this bill.

While the wording puts obligation on the commissioner to work with First Nations, there is no such obligation of the commissioner to work with provinces and territories to address some of the systemic issues that prevent the well-being of children. If Canada wants to improve the living standard of children and youth, both levels of government need to be committed to upholding the rights of the child.

Moreover, the bill looks like it reinforces the provincial status quo. Clause 11(1)(j) states that:

The mandate of the Commissioner is . . . to collaborate and cooperate with authorities across Canada that promote, advocate for or serve children and youth in order to foster common policies and practices and to avoid conflicts in the handling of matters in cases of shared jurisdiction . . . .

These authorities rest with the province. If the province has been historically unwilling to shift their way of being on this issue, the avoiding of conflict, as stated above, will simply ensure First Nations children remain under threat.

In this vein, under clause 17(5)(a), it stipulates that:

The Commissioner may . . . enter any place of detention or residence for children and youth under control or operation of the Government of Canada . . . .

Many youth centres or group homes are operated under provincial jurisdiction. How would the commissioner then deal with these residences operated by provinces?

Colleagues, within this jurisdictional friction, another area that requires clarification is which children would benefit from this bill. It is also unclear how the commissioner would work with the children that fall outside federal jurisdiction. This bill references First Nations, Métis and Inuit in 7 of the 11 paragraphs in the preamble, and under clause 17(1) it states:

The Commissioner may . . . conduct an inquiry into any matter . . . under federal jurisdiction that affects the rights of children and youth.

First Nations are the only people who have been intentionally targeted by Canadian and provincial laws and made to live under oppression by both the federal and provincial systems. These multiple jurisdictions in child and family services have never worked well with First Nations children and youth.

Since this is a federal bill, it will therefore only have influence on federal lands and jurisdictions. The children that fall into this category include First Nations on reserve and immigrants and refugees under the Canada Border Services Agency, yet the immigrant and refugee children are not mentioned in this bill.

Honourable senators, as I have said, there are multiple areas of this bill that mention First Nations, Inuit and Métis children and youth, including under the subclauses in “Reports” and “Review,” 21(b) and 29(5), and most interestingly, under clause 16, titled “Focus,” it says a potential assistant commissioner would “focus on matters related, in particular, to First Nations, Inuit and Métis children and youth.”

When asked if the main commissioner, instead of the assistant commissioner, could take the role, no answer was forthcoming. It is my perception that issues surrounding First Nations, Métis and Inuit children and youth are largely being used as the rationale to establish a commissioner.

As a child advocate with the Assembly of Manitoba Chiefs, Cora Morgan stated:

This would dilute issues for First Nations. Canada has a history of children stolen from First Nations, so we need our own commissioner. The issues and realities of First Nations children are unique and complex; they cannot be adequately addressed by a pan-Canadian commissioner. Without prior and proper consultation, we again find ourselves in a position where others are speaking on behalf of our children.

She continues:

The AMC has always advocated for unique solutions to issues that are led by First Nations. For over 150 years, Canada developed specific legislation for First Nations without consultation with First Nations. General legislation, policies, and practices led by Canada do not work for First Nations. The standards unilaterally determined by the government do not reflect the needs and/or realities of our Nations.

The issue of inadequate consultation on this bill flows directly to the appointment process, as subclause 5(1) requires that a commissioner only be named after consultation with the leader or facilitator of every recognized party. However, this intentionally leaves out First Nations leadership from having a seat at this table.

Honourable senators, another serious issue I have with this bill is that there is no funding attached to it by virtue of it being a Senate private bill. I understand there is hope if it gets enough support that the government may feel pressure to provide funding in the future, but there is no such guarantee. As stated by AMC, without the funding to establish this office, the purpose of the bill becomes null and void.

Honourable senators, the work to decolonize the approach Canada has undertaken with regard to First Nations is overdue but onerous. The National Inquiry into Missing and Murdered Indigenous Women and Girls calls for a child advocate in every province as well as nationally. The introduction states:

The steps to end and redress this genocide must be no less monumental than the combination of systems and actions that have worked to maintain colonial violence for generations.

Under “Principles for Change” it states:

. . . all actions and remediation to address root causes of violence must be human and Indigenous rights-based with a focus on substantive equality for Indigenous Peoples.

“Substantive equality” is a legal principle that refers to the achievement of true equality in outcomes. It is required in order to address the historical disadvantages, intergenerational trauma, and discrimination experienced by a person to narrow the gap of inequality that they are experiencing in order to improve their overall well-being.

Honourable senators, another area of the bill I would like to consider is the definition of children and youth. Within the definitions section, this bill defines them as “. . . persons who are under the age of 18 years.” However, this definition differs within provinces and territories. In British Columbia, the Child, Family and Community Service Act defines a child as a person under 19 years of age and a youth as a person 16 years of age or over but is under 19 years of age. Therefore, youth 18 years of age or older in care may be unable to benefit from the work of the commissioner.

Further, the definition of children and youth in Bill S-210 does not include children and youth aging out of care. Youth aging out of care is a massive issue in Canada, especially in Manitoba, as these youth face many challenges with little or no support. Research shows that provincial child welfare systems do not adequately prepare youth for life after care. Children in care are less likely to graduate from high school and are more likely to be involved in the youth criminal justice system.

Within this cohort, it is important to note that Indigenous girls and 2SLGBTQQIA youth face particular challenges concerning their personal safety in the child welfare system. Witnesses shared stories in the inquiry of Indigenous and 2SLGBTQQIA youth and young adults whose death or disappearance took place while they were displaced from or living in the foster-care system.

There is limited data available on the number of Canadians who identify as part of the 2SLGBTQQIA. Statistics Canada surveys have not yet asked questions about gender identity. There is also no data on the disabled community.

Another critical issue with this bill is there is no highlighted process, procedure or expectation for the collection of disaggregated data. This information would be of the utmost importance in aiding and directing the commissioner as well as establishing patterns in whom the commissioner would serve.

Honourable senators, based on our previous meetings on this bill, the Assembly of Manitoba Chiefs gave the following recommendations: one, remove all references of First Nations from the bill; two, collaborate with other First Nations across Canada to advocate for a specific national First Nations commissioner that addresses the inequalities of First Nations children and improves the standard of living for First Nations children and youth; three, ensure both levels of government, federal and provincial, have a role and responsibility to support the well-being of First Nations children and youth.

Honourable senators, I hope that these and many more questions can be answered when this bill goes to committee. Thank you.

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