Legislative Measures for the Implementation of the CRC: International Lessons Learned and Recommendations for the Government of Canada

Canada has been widely recognized internationally for its leading role in drafting the United Nations Convention on the Rights of the Child (CRC), and promoting the rights of children around the world. However, the reality is that Canada has fallen behind in making its commitments to children a reality at home and abroad.

The United Nations Committee on the Rights of the Child has provided clear guidelines for the implementation of the CRC, with particular attention to the need for legislative measures, and has recommended that States Parties undertake such actions as:

 

1. Tabling a "Declaration of Intent to Comply" in order to confer powers on appropriate officials to implement or enforce the CRC;

 

 

1. Expressly incorporating the Convention through constitutional reform or incorporating the provisions or principles of the Convention into legislation;

 

 

1. Conducting a comprehensive review of all domestic legislation to ensure compliance with the CRC and its provisions;

 

 

1. Enacting consolidated children’s rights statutes; and

 

 

1. Enacting sectoral laws to clarify the extent of children’s rights.

 

Canada, however, has not expressly incorporated the Convention. Instead, the Convention has been deemed to be implemented by means of the Canadian Charter of Rights and Freedoms, federal and provincial human rights legislation, and other legislation pertaining to matters addressed in the Convention. Despite the assurances the government has made regarding its compliance with the CRC, there are numerous glaring examples of how Canada’s federal laws do not conform to the standards of the Convention. As a result, there is increasing concern that Canada’s failure to undertake legislative measures to implement the CRC is negatively impacting children both in Canada and abroad. The impact is particularly evident in the areas of child poverty, children in migration (such as trafficked or refugee children), Aboriginal children, and corporal punishment.

In 2004, the Standing Senate Committee on Human Rights embarked on a study of Canada’s obligations to the rights and freedoms of children. At that time, World Vision Canada made a submission on the importance of strengthening measures to implement the CRC. In 2005, the Senate Committee issued an interim report with its findings, and recommended specific actions that would enhance Canada’s compliance with the CRC. The Senate Committee gave particular attention to the need for enabling legislation that would legally bind the federal government to its international obligations, and the need for enacting legislation to establish a Children’s Commissioner.

In response to that report, World Vision Canada undertook research, in partnership with the Child Rights Working Group, a student-led initiative of the University of Toronto’s International Human Rights Programme, to assess the measures taken by other States Parties to the CRC in order to gain lessons that could be applied to the execution of the Senate Committee’s recommendations. As a result of this research, World Vision Canada entered a second written submission to the Senate Committee; this companion paper elaborates on the issues and recommendations raised in World Vision’s second submission.

World Vision Canada examined various approaches to incorporating the Convention into domestic law, and determined which of these approaches could be applied within the Canadian context. Case studies of South Africa, Sweden, Norway, and Argentina revealed the following:

 

1. South Africa engaged in constitutional reform, enacted a comprehensive children’s rights statute, and conducted ongoing legislative review to ensure compliance;

 

 

1. Sweden declared its commitment to the Convention through a Parliamentary bill, and conducted sweeping review of legislation;

 

 

1. Norway incorporated the Convention through its Human Rights Act; and

 

 

1. Argentina gave the Convention constitutional status.

 

World Vision Canada and the Child Rights Working Group also researched the role that independent human rights institutions for children, as established by legislation, have played in the implementation and advancement of children’s rights. A review of the Canadian context and case studies of Norway, Sweden, New Zealand, England, Scotland and Austria revealed the following:

 

1. Nine Canadian provinces have legislation establishing a children’s officer or advocate; unfortunately, two of the provincial institutions do not operate independently from government. Although the powers and responsibilities differ across provinces, they all work to ensure that children are treated with dignity, tolerance, respect and equality. There is no independent human rights institution at the federal level;

 

 

2. Norway became the first country to establish an Ombudsman for Children through legislation in 1981. The legislation was subsequently amended in 1998 in order to align the mandate of the Ombudsman to the CRC. The roles and responsibilities of the Ombudsman are broadly based and include the investigation of complaints, monitoring the implementation of the CRC, and conducting education programmes. Through its activities and the involvement of children, the Ombudsman has contributed to the advancement of children’s rights in Norway;

 

 

3. Sweden was the first State Party to link the mandate of the Children’s Ombudsman, as established through legislation, to the CRC. The Children’s Ombudsman monitors the implementation of the Convention at the national, regional and municipal level, and widely promotes the rights and interests of children, recognizing and involving the views of children and youth in a meaningful way;

 

 

4. New Zealand established the Commissioner for Children in 1989. The Department of Social Welfare initially administered the Commissioner, however, concerns over the independence of the Office led to the enactment of the Children’s Commissioner Act 2003. The amended legislation strengthened the independence and the role of Office of the Commissioner, and linked its broad functions and powers to the Convention;

 

 

5. England established the Children’s Commissioner through legislation in 2004, with the main function of promoting awareness of the views and interests of children in England, having regard to the CRC. In its initial year, the Children’s Commissioner concentrated on establishing a presence and setting up a national policy while actively encouraging the participation of children and young people;

 

6. Scotland’s Commissioner for Children and Young People was established in 2003, after several years of campaigning by child-focused organizations, in order to promote and safeguard the rights of children and young people. Having regard to the CRC, the Commissioner launched a wide-reaching poll on the issues affecting children, the results of which formed the action plan for 2006-2008;

 

 

7. Austria promoted the establishment of local ombudspersons in each of the nine provinces through child welfare legislation, charged with the primary task of counseling children and parents, and assisting in the resolution of disputes about care and upbringing. In 1991, a federal ombudsman was also established to respond to federal issues and collaborate with the local offices.

 

Taking into consideration Canada’s federal nature and practice toward international treaties, and learning from the experiences of South Africa, Sweden, Norway, and Argentina, New Zealand, England, Scotland, and Austria, World Vision Canada recommends that the Canadian government undertake the following actions in order to improve its compliance with the CRC:

 

1. Adopt enabling legislation by tabling the CRC in Parliament, accompanied by a declaration that all relevant legislation will be reviewed and amended in compliance with the treaty obligations, and that the federal government agrees to comply with the CRC. This would strengthen the legal position of children and also signal Canada’s commitment to child rights;

 

 

1. Engage in a comprehensive review of legislation and related administrative guidelines and policies on an ongoing and systematic basis to ensure compliance with the CRC, to ensure coordination of legislation at the federal, provincial and territorial levels, and to set national standards. A permanent body that is representative of government and non-government organizations, professionals, and children should be established to conduct such reviews on an ongoing basis;

 

 

1. Enhance the role of Parliament by tabling Canada’s country reports and the Committee’s Concluding Observations, thus providing the opportunity to assess the adequacy of government actions and the compliance of existing laws with the CRC, and increasing transparency and accountability to the public;

 

 

1. Enact legislation to establish an independent national human rights institution for children at the federal level as complementary to effective government structures. A federal institution is necessary to handle issues outside the jurisdiction of the provinces and territories, to address systemic issues arising at the national level, and to coordinate and establish national standards for institutions across the country.

 

World Vision Canada strongly recommends that the Government of Canada implement these legislative measures, which affirm and strengthen the recommendations made by the Standing Senate Committee on Human Rights, as evidence that Canada takes the rights of children seriously.