Presentation to the 11th annual Health and Human Rights Conference, University of Toronto, January 17, 2009
The Universal Declaration of Human Rights was adopted in 1948. It is the foundation of all modern international human rights law. It enshrined a set of basic concepts and stated emphatically that “motherhood and childhood are entitled to special care and assistance.”
A United Nations (U.N.) declaration is a written statement of agreed principles and is an advisory document. Forty years later, the advisory document became a convention. The signatories to a convention declare their intention to comply with the provisions and obligations in the text when they ratify it. The ceremony of ratification is a solemn occasion attended by representatives from the country and representatives of the U.N.
The U.N. Convention on the Rights of the Child was adopted by the General Assembly of the U.N. in New York on November 20, 1989. After approval it was open to signature by individual States Parties. Signature implied intent to comply. The Convention was approved with commendable haste and ratified by a record number of members.
On December 13, 1991, the Prime Minister of Canada ratified the Convention and committed Canada to comply with the provisions and obligations of the text. The Convention allowed for a country to declare a Reservation because of a specific domestic situation that could not be resolved before ratification. Canada reserved on article 37(c), which requires young offenders to be incarcerated separately from adult offenders. This was nonsensical in 1989 and gets more absurd every time Canada makes the argument. It stands as an annoying token of a Canadian refusal to comply. The second example of Canada’s difference is a statement of understanding about Article 21 that acknowledges the right of Aboriginal communities to practice traditional forms of care when they do not conflict with the standards of the Convention.
DCI-Canada had a presence at the General Assembly on November 20, 1989. A group of youth sat through the occasion and attended the celebration that UNICEF staged later in the day. For some unexplained reason, all speeches in the youth forum were required to be in English, but our DCI francophone colleagues addressed the gathering in French. It was something they were passionate about, and we cheered them. We need more passion in this movement. Children’s rights cannot change history until we care about them so much that it hurts. November 20, 1989 was an occasion for pride and celebration. It is a day that should be marked in history and proclaimed each year to confirm to children that they have a personal status alongside every other human person.
There is a process for monitoring the efforts of countries to make the Convention work for children. Every five years each country reports to the U.N. Committee on the Rights of the Child the progress that it has made towards full implementation and receives the comments of the Committee on its record. The intent of the regular reporting procedure was to encourage gradual improvement as a government works its way up the ladder of compliance leaving the rung of non-compliance, behind. When Canada reports, the Committee finds that there has been no substantial change. We are at best on the same step, and sometimes we have lost ground. In the business of children’s rights, no progress is a disgrace.
2009 is 20 years after the day that made us proud. The feeling has faded. Twenty years is a long time in the life of a child. The visit to the Committee has become a five yearly repetition of excuses. Our failure to implement the Convention was clearly recorded in the Canadian Senate report entitled Children: The Silenced Citizens. It is a tragedy, a waste of opportunity and a betrayal of the children.
Have children in the “care” of the criminal justice system been treated with “humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons their age?” Are they treated in a manner consistent with the child’s sense of dignity and worth? Ask little James Lonnee who was brutally beaten to death at the age of sixteen in a secure isolation cell (designed for one occupant) by another offender who shared the hell hole. Ask David Meffe who had severe emotional problems and hanged himself in secure custody while the guard on duty rushed around locking cell doors. Ask Harvey Barkman who was transferred to an adult jail and hanged himself while under supervision. How can you ask someone who is dead?
Article 12 of the Convention reads,
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters concerning the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
When the right to be heard as outlined in this article was recognized at inquests of youth who died in custody, a whole new dimension was added to an inquiry. The ability of the system to cover up instances of error and abuse of children’s rights was severely weakened as young people spoke about the realities of life in care.
Unfortunately, this right has not been imprinted upon official conscience. There is still a reluctance to listen to young people. DCI-Canada and its lawyer, Suzan Fraser gained standing at the Goudge Inquiry which reviewed the conclusions of Dr. Charles Smith on the death of a number of children and found that faulty investigative procedures had resulted in a number of parents being wrongfully convicted.
While great concern was expressed about these wrongful convictions of adults and a commitment was made to provide compensation, little was said about the children who were wrongfully separated from their families. Imagine the horror of believing that your parent had killed your brother or sister and then being ripped away from your family, your home and everything. The suggestion that the children could have something to say has been resisted and we strongly feel that they may have a lot to teach us about how it felt to be removed from their families and familiar settings under the cloud of blame. (The response of the child welfare system has been familiar.) Why were the voices of these children not heard at the Inquiry? Why was there such strong resistence to their involvement? After the release of the Goudge Report the Ministry proposed to refer the children back to local Children’s Aid Societies. There was no commitment to listen to the wishes of the child, no reference to compensation, no assurance that local CAS’s are equipped to handle the complexities of these very difficult situations. It is our advice that the voices of children must be listened to with great care by a sympathetic panel and that the Provincial Advocate for Children and Youth should monitor the process closely.
In public policy decisions the rights of the child are seldom considered. There have been cases where Canadian children and their families have been deported by immigration authorities in clear violation of the U.N. Convention on the Rights of the Child. A recent case involved a young boy who suffered from Down’s syndrome. He was born here and was a Canadian citizen but of the rest of the family, who had come to Canada from Uruguay requesting refugee status, had not been granted leave to remain in Canada despite a record of good citizenship and responsible management of resources during the seven-year delay in reviewing their case. The child was responding well to treatment at a mental health centre for children but the immigration authorities would not waver in their decision to send the family back to Uruguay. All their pleas for help were ignored until we were able to involve the media and enlist legal help to protect the rights of that child under attack from the Government that ratified the Convention.
You have to be passionate about the rights of the child before people will respect them.
We have watched in dismay the angry blogs attacking the “war resister” Kimberly Rivera who sought sanctuary in Canada with her family including her new Canadian baby, Katie. Whatever the views about the mother, the child has her own rights as a Canadian citizen that must be respected.
One of the heroes in the history of civil rights in America is Rosa Parks. She fought for a seat in the bus. We have Canadian heroes too. They have been fighting to resurrect the Convention from the silence of the grave and the apathy of the coffin.
In the fall of 1990, I sat down with Stephen Lewis in his office at the U.N. when he was Canadian ambassador to the United Nations and we talked with Mike Jupp, Executive Director of DCI-USA about some final changes in the text of the Convention. They were passionate days. Three days before November 20, Mike had a heart attack and died. He worked hard and cared vehemently and his death was a huge loss. Stephen Lewis was passionate. He is always immensely concerned about the plight of children in our world. Senator Romeo Dallaire is passionate. He wept for the children of Rwanda, and the child soldiers of the Congo and now he is knocking on doors until his hands bleed calling the Canadian Government to account over its lack of concern for Omar Khadr and the immoral neglect it has shown for the rights of a fifteen year old offender in a culture of terrorism and torture.
Perhaps nobody is asking what the rights of the child may be because nobody really believes that a young child should have rights. Until we believe in those rights, children will continue to be victims to our indifference. Will Canada repeat its meaning less dance in honour of the rights of forgotten children one more time in Geneva at the U.N. Committee on the Rights of the Child?