DEFENCE FOR CHILDREN INTERNATIONAL–CANADA

The Chair: We’ll move on to our final presentation this morning. It’s the Defence for Children International–Canada, Agnes Samler, president, and Matthew Geigen-Miller, board member. Good morning. Welcome to the committee.

Ms. Agnes Samler: Good morning. I’m president of Defence for Children International–Canada. I’d like to begin, on behalf of our board, with congratulating this committee for the non-partisan approach it has taken to this bill and to the issue. I really believe that both this bill and the advocate need to have the support of all parties. so that’s very important to us.

Secondly, I think you’ve made a serious effort to include the voices of children and youth. That was highlighted by our volunteer executive director, Les Horne, when he addressed the hearing yesterday. We know it’s not perfect—we do know that—but you’re breaking new ground here and I think we need to acknowledge that and to applaud it.

Those are two issues that are really critical for DCI–Canada.

I’d like to now introduce you to Matthew Geigen-Miller. Matt started off as a youth adviser to Defence for Children International and is now a full member of the board. He is also a student at Osgoode law school and he has spent—I’ve been trying to figure this out—four years working on this issue and is passionate about it. I think you will find that his report is thoughtful and has been well researched, and it really has a focus on trying to make this legislation as strong as possible for children, particularly the vulnerable children that so many people have talked about today. We’re very proud as DCI to put this forward this morning. I’ll now turn it over to Matt to talk more specifically about the issues.

Mr. Matthew Geigen-Miller: Thank you, Agnes. For the record, my name is Matthew Geigen-Miller.

Mr. Chairman and honourable members of the committee, thank you for the opportunity to appear today. I hope you will forgive me for skipping over a lot of pleasantries that I wanted to get into in congratulating the minister and congratulating the members of the opposition, particularly the critics for children and youth services, for their work in bringing this forward. I hope you will not get the wrong impression from my presentation, which is really going to be oriented toward improvements to the bill. We have much praise for the bill. It’s because of the short time I have right now. But if you look at the paper, we have praise for a number of elements in the bill.

First, I’m going to turn to what we have been calling the groups excluded from the advocate’s mandate. By now you’ve all heard that some groups currently served by the Office of Child and Family Service Advocacy are not in the legislated mandate of the new proposed advocate; specifically, students in provincial schools for the deaf, blind, and demonstration schools; young people held in police or court holding cells, and young people being transported to or from police or court holding cells; and young people receiving non-custodial services such as community supervision and probation under the Youth Criminal Justice Act. A lot has been said about this already. I will make only a couple of additional points.

First, the independent third-party review of the advocacy office, which was commissioned by the government, recommended that the advocate’s legislated mandate should be the same as what the current advocate does. Now, this doesn’t preclude some of the additional groups that have been suggested, but at a minimum, the groups currently served by the advocacy office should be in the legislated mandate.

Second, two of these excluded groups—students at provincial schools and young people in holding cells and in transportation and so on—began to receive services from the advocacy office following government reports that raised serious concerns about safety issues and rights issues. So the circumstances leading up to these two groups starting to get advocacy services—it was not a hypothetical issue that these people might be vulnerable; there were reports of rights abuses and very specific problems that were happening.

Thirdly, it is not enough to add these groups to the advocate’s mandate through regulation or through a memorandum of understanding. Regulations, as we all know, are made by cabinet and they are repealed or revoked by cabinet at any time. If the new advocate is dependent on the support of cabinet in order to serve these groups, then that’s not an independent advocate; that’s an advocate dependent on the executive.

I’ve recommended an amendment to entrench these groups in the legislated mandate. We have heard a lot about measures to ensure that young people in facilities out of home care have proper access to the advocate, and I’m just going to raise a few of the quirks of Bill 165 as it is drafted.

Children and youth in the care of a children’s aid society will have the right to be informed of the existence of the advocate and the right to receive a visit from the advocate, but they have no right to make a call to the advocate they’ve been informed of in order to ask for the visit they’re entitled to.

Second, young people in what used to be called phase 2 youth justice custody—that’s older youth—don’t have any rights to call the advocate because they are not in the Child and Family Services Act; they’re under different legislation. And if we do put in some of these excluded groups, like students in provincial schools, there are no rights in this bill for them to call the advocate either.

I want to emphasize that most people in residential care depend on the facility they live in to call the advocate. For example, young people in secure mental health settings, custody facilities and similar facilities rely on the institution to give them access to a telephone. Even many group homes, which many consider to be more of a community setting, don’t allow young people who live in them to carry a cell phone.

Can institutional staff be trusted to decide who should call the advocate and how soon they should call the advocate? I think that’s a very good question to ask the youth who are going to appear here this afternoon and what their experiences are with that. In the meantime, I will just remind you that Sarah Dagg earlier this morning correctly pointed out the case of James Lonnee, who, while being held in a Wellington detention centre, was placed in a small isolation cell designed for one person—and it was a dreadful cell even for one person; it should never have existed—but he was not alone in that cell. Contrary to facility policy, he was placed in a cell with another young offender, who threatened to harm him. James asked to call the advocate. The institution said no, that he wasn’t behaving himself and he needed to settle down before he was going to be calling anyone. A short while later, James Lonnee was dead. He had been beaten to death by that other young person. All of this came out in the inquest into the death of James Lonnee that took place from 1998 to 1999.

I’ve recommended amendments to give young people in residential care a positive right to call the advocate privately and without delay. There should be no judgment about how soon the call can be made. And we should be placing a positive duty on workers, as exists in similar legislation in other provinces, to ensure that a young person who asks to make the call gets to make the call.

In terms of the advocate’s access to young people, we have heard a lot of comments about subsection 14(4) of the bill, which places a restriction on the advocate’s ability to enter facilities. I think it’s important to put this in context. Nowhere in the bill does it say there is a right to enter facilities. The only time entering facilities is mentioned is a restriction. This sends the wrong message about the advocate’s ability to enter facilities to talk to young people. The ability to get into facilities is absolutely essential, particularly in the more secure institutional settings where a young person can’t leave in order to access the advocate elsewhere.

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There should be no leeway for an institution to cancel a meeting between the advocate and a young person on the grounds that the advocate didn’t give reasonable notice. Anyone who is not an official advocate who’s ever done work with people living in institutions, who doesn’t have some official status, knows that quite often you show up at an institution and you find out that plans have changed, there’s a lockdown, there’s been some security issue or whatever, and you can’t get in. Anyone who doesn’t have a legislated right to enter doesn’t get to enter, a lot of the time. This is something that happens all the time.

It’s also very important to note that Bill 165 recognizes and affirms the importance of systemic advocacy. The ability to work with an institution proactively or to perform a review of an institution in response to systemic concerns is very important. That requires a free-standing independent right to enter a facility, not just if there’s been a visit requested by a young person living there. We should not be giving institutions a veto over whether or not those kinds of facility reviews are going to take place. I’ve made a recommendation for an amendment in this regard as well.

I’m also concerned about the advocate’s lack of access to records and documents in Bill l65. Although the main source of the advocate is and should be the voice of the young person for whom the advocate is advocating, official records of various kinds often play an important role. In the case of individual advocacy, Bill 165 gives the advocate a limited right to access personal information about a young person if the young person would normally have access to that information. I encourage you to ask the young people who appear this afternoon what kind of access they have to their records. I think you will hear that it is very little.

In any case, it’s not just their own personal files that an advocate might need to access. Here’s one example. A young person in an institutional setting is placed in secure isolation, seclusion, segregation—you get the idea—a locked room. The young person wants to complain about this. Being placed in segregation is a common source of complaint, both in children’s facilities and in adult institutions. The advocate needs to find out, to support the young person making this complaint, how long they were in the cell, so you ask the young person, “How long were you in the cell?” What are they going to do? Look at the wristwatch they’re not allowed to wear in an isolation cell or look at the clock that isn’t on the wall in an isolation cell? No, you need to look at the facility logs to see, okay, the young person was in there for eight hours, and then be able to look at things like policies and procedures manuals of the facility to see whether that was in keeping with the facility’s own internal policies and procedures. So there are a number of other documents besides the young person’s own personal file that are important in advocacy, both individual advocacy and systemic advocacy like facility reviews.

I’ve made a recommendation about this. What I’ve said is that we need to have essentially unencumbered access to records—few exceptions. I’m not talking about breaking solicitor-client privilege or getting at cabinet documents, but I’m talking about virtually any document in the care or control of a service provider or a facility. We can balance any concerns about privacy by making sure that there are very, very strict confidentiality provisions in place.

The Chair: You have about two minutes for your wrap-up.

Mr. Geigen-Miller: Thank you. I’m not going to duplicate it much, but I agree with the people who have presented that we need very strong protections in place for confidentiality of information collected by the advocate. My recommendations are in our brief, and a number of other presenters have made very good points about this as well.

I want to emphasize that complex special-needs youth are not specifically mentioned in the bill. This is important, because they don’t always fall under the category of an existing service and because providing advocacy to complex special-needs youth right now occupies such a huge amount of the advocacy office’s work. How is the new advocate going to justify the appropriations needed from the Legislative Assembly to continue doing this work if there isn’t a line anywhere in the bill that says “complex special-needs youth”? It will be the legislation that will provide a basis for resource allocation to the new advocate, and it has to be in there.

I want to comment on the union issue. A number of other speakers have commented on it. Saying that the staff in the new office should not be in a public service union is not an anti-labour position. I consider myself to be very pro-labour. I don’t cross picket lines. If I ever did, it would have to be life or death and then compensated with a box of doughnuts.

I just want to make clear that an advocate, many times in the past, has had to cross picket lines, because when there is a public service strike the circumstances in the facilities can get very bad. I’ve had personal experience with this when I was a young person and there was a young person who spoke yesterday about it as well. We shouldn’t be having them in the same union. It creates a conflict of interest that the advocate shouldn’t have to be in.

Finally, on the question of preamble, I have circulated my own personal—not DCI–Canada’s—suggestions for the text of a preamble and I would welcome questions about that.

As far as further questions are concerned, I’ll take them now.