February 21, 2012
The Right Honourable Stephen Harper
Prime Minister of Canada
Office of the Prime Minister
80 Wellington Street
Re: Canada’s obligations under the UN Convention on the Rights of the Child and
Dear Prime Minister:
We are writing to inform you about serious concerns with regard to the youth justice provisions in Bill C-10 and Canada’s obligations to protect the rights of children.
In 2007 the Senate unanimously endorsed the results of a three-year study on children’s rights, including recommendations to improve how Canada implements its obligations under the UN Convention on the Rights of the Child. Your government responded to this report with assurance that an assessment would be done on all proposed legislation and policies to ensure compliance with the Convention.
An assessment of Bill C-10 to ensure compliance with the Convention has not been done. The Canadian Coalition for the Rights of Children, UNICEF, Justice for Children and Youth, and other reputable children’s organizations have analyzed the proposed legislation and identified significant inconsistencies with specific provisions for youth justice in the Convention and widely accepted principles for child protection. Without a full assessment of the proposed changes in the youth justice system for compliance with our international obligations, Canada risks taking a serious step backward on children’s rights.
Fundamentally, the youth justice system needs to be qualitatively different than the adult system. Changes to the youth justice system should be considered separately from the adult system. One option would be to remove part 4 of Bill C-10 for now. That would allow a thorough assessment to ensure that the proposed changes comply with good practice and Canada’s obligations to protect the rights of children. It would also allow further consideration of the most effective use of the resources available to deal with youth who come into conflict with the law. Alternatively, we ask you to consider delaying proclamation of the changes to the youth justice system, following passage of the bill, until an independent assessment of compliance with the Convention is completed and appropriate amendments are made.
Below are some concerns for specific attention in a full child impact assessment. These have been submitted to the Senate Legal Affairs Committee, along with proposed amendments to improve the bill’s compliance with the Convention.
I. Best Interests of the Child as the primary consideration
Article 3 of the Convention on the Rights of the Child requires that the “best interests of the child” are to be the primary consideration in any decisions involving persons under the age of 18.
While Bill C-10 requires judges to consider a wide range of principles for sentencing, it does not require them to give priority to what is in the best interests of the young person involved. As well as international law, the Supreme Court of Canada has ruled that the “best interest of the child” is a matter of fundamental justice in Canadian law and therefore needs to be a priority.
II. Article 37: Detention as a last resort for persons under the age of 18
Bill C-10 appropriately requires separate detention facilities for young persons, but it does not include the principle that detention “shall be used only as a measure of last resort and for the shortest appropriate period of time,” as stated in Article 37 of the Convention. As drafted, the bill will mean more frequent use of detention and in a broader range of cases. Research demonstrates that the threat of long sentences does not deter youth crime because young people do not think they will be caught or are not thinking about the consequences when they fall into criminal activity. There is concern that the result of the proposed changes will put more young people in jail for less severe crimes for longer periods of time.
III. Article 40: Appropriate treatment of young persons in conflict with the law
Bill C-10 adds deterrence and denunciation as objectives for sentencing young persons; in doing so it weakens the primary focus on rehabilitation and reintegration as set out in Article 40 of the CRC. While evidence raises serious doubts about the effectiveness of deterrence and denunciation in youth justice, we know that age appropriate measures for correction and accountability in the current Youth Criminal Justice Act received a positive evaluation in the cross-country evaluation last year. Good practice in youth justice and the Convention suggest expanding the use of age-appropriate corrective strategies rather than substituting time in jail, a less effective approach to youth justice.
To comply with the Convention, adult sentences should clearly be an exception, not required as a first consideration, as proposed in Bill C-10. The provisions under the current YJCA are adequate, as interpreted by the Supreme Court of Canada in R v B(D),  2 SCR 3, which held that the presumption of adult sentences was unconstitutional.
We are also concerned that publication of names will not help young people become responsible adults. Working with young people to give them a second chance is the focus of successful programming with young people who have come in conflict with the law. Public labeling reduces space for a second chance, and perversely, it can give young people status within groups that reinforce negative behaviour. Article 40, paragraph 2(cii) of the Convention obligates Canada to respect the right of the child "to have his or her privacy respected at all stages of the proceedings."
IV. Article 39: Support for child victims of any form of abuse.
Article 39 requires states to take ‘all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect.’
In Canada, more young people experience violence than perpetrate it. Bill C-10 does not address the high level of violence against children. A large percentage of young people in trouble with the law have experienced some form of neglect. In 2009, for example, a study by the BC Children’s Advocate found that 50% of the young people in the criminal justice system had been in the child welfare system. They need to be treated in accordance with Article 39. Although Bill C-10 is intended for application only to a small percentage of young offenders, its overly broad definitions and provisions are likely to lead to the incarceration of more young people who should be treated under the provisions prescribed in Article 39.
In conlusion, public safety and respect for the rights of young people are not mutually exclusive. Both can be advanced through the use of age-appropriate strategies with young people who are at high risk or have come into conflict with the law. We would like to have a meeting with you, or the Minister of Justice, to discuss how Canada can advance both of these goals, through measures that fully respect the rights of all children in Canada.
Please respond to Kathy Vandergrift, Chair of the Canadian Coalition for the Rights of Children, who will communicate your response to all the organizations, listed below, who are in agreement with this request.
Sincerely, on behalf of the following organizations:
Boys and Girls Clubs of Canada
Pam Jolliffe, President and CEO
Canadian Association of Social Workers
Morel Caissie, MSW, RSW, President
Canadian Coalition for the Rights of Children
Kathy Vandergrift, Chair of the Board
Child Welfare League of Canada
Mike DeGagne, Chair of the Board of Directors
Defence for Children International Canada
Agnes Samler, President
First Call: B.C. Child and Youth Advocacy Coalition
Adrienne Montani, Provincial Coordinator
International Bureau for Children’s Rights
Nadja Pollaert, Director General
International Institute for Children’s Rights and Development
Dr. Philip Cook, President and CEO
Justice for Children and Youth Foundation
Martha McKinnon, Executive Director
Laboratoire de recherche interdisciplinaire sure les droits de l’enfant (LRIDE
Interdisciplinary Research Laboratory on the Rights of the Child (IRLRC)
Mona Pare, Director
Robert Fox, Executive Director
Rosemary McCarney, President and CEO
Pro Bono Law Ontario
Lee Ann Chapman, Lawyer
Save the Children Canada
Patricia Erb, CEO and President
Society for Children and Youth BC
Andrea Lemire, Executive Director
Please respond to:
(original signed by Kathy Vandergrift)
Kathy Vandergrift, Chair
Canadian Coalition for the Rights of Children
937 Alpine Avenue
Ottawa, Ontario K2B 5R9