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TRANSCRIPT OF BERNARD RICHARD PRESENTATION TO THE SENATE!!!!

THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS UNREVISED EVIDENCE FREDERICTON, Tuesday, June 14, 2005

The Standing Senate Committee on Human Rights met this day at 9:10 a.m. to examine and report upon Canada’s international obligations in regards to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.

The Chairman: Welcome to the Senate Standing Committee on Human Rights. We are very pleased to be in Fredericton, particularly myself. Having to try to traverse this country to get here is not easy. I thought the bad weather was in the winter, but apparently it is in June in Toronto, not here I assure you.
We are very pleased that we were able to come to the Atlantic Region to examine and report on Canada’s international operations and obligations in regard to the rights and freedoms of children. We have today the ombudsman, M. Bernard Richard, and we are pleased to have him for an hour and a half, so that should give us a lot of time to ask you questions on the Convention on the Rights of the Child and I hope human rights in a more general basis.
Now, you have some staff with you. I would ask you to introduce them and present your opening statement. Welcome.

M. Bernard Richard, ombudsman du Nouveau-Brunswick : Bienvenue au Nouveau﷓Brunswick, la seule province officiellement bilingue au Canada.

Il me fait plaisir de vous rencontrer, et je veux vous remercier de m'avoir invité à vous adresser la parole sur les droits des enfants et, en particulier, la Convention sur le droit des enfants, dont le Canada est signataire.

I am accompanied by four students this morning who help us do our work during the summer months at our office, and two of them are with me at the table -- David Kuttner who is a Laval law student, Cynthia Kirkby, who is a UNB law student. And sitting out there in the gallery Katherine Jardine, who is a law student here at UNB, and Kerry Ross, who is a business student at UNB, here in Fredericton as well. So I thank them for accompanying me.

As well I should point out early on in my presentation that I will be speaking perhaps for about ten minutes or so. I should warn you on that, because I am a former member of the legislature, and one of my last speeches in the legislature was a response to the budget as finance critic and it lasted for nine hours. So if I go on, please do not hesitate to cut me off.

I mention the students because I can make the presentation. It is easy enough for me to do because they did most of the work and research. And then they can answer the questions if you have any.

Ma présentation sera surtout en fonction de cas spécifiques. J'ai voulu répondre à votre invitation en faisant référence à des cas authentiques, parce qu'il me semble qu'on peut beaucoup parler des droits de la personne, des droits des enfants, mais ces droits deviennent plus réels lorsque l'on voit comment les enfants, même au Canada ﷓﷓ c'est un peu inconcevable ﷓﷓ rencontrent des problèmes énormes pour obtenir des services dont ils ont besoin.

Notre bureau, par définition, n’est pas l'ombudsman des enfants, puisqu’au Nouveau﷓Brunswick il n’y a pas un ombudsman protecteur des enfants. Nous recevons des plaintes qui concernent les enfants et nous traitons de ces plaintes sur une base régulière.

J'ai accepté votre invitation, pour différentes raisons. J'ai l'espoir que vos interventions et vos rapports seront notés et auront une influence, et pourront servir à améliorer la situation des enfants au Nouveau﷓Brunswick, et ailleurs au Canada. J'ai quand même espoir. C'est sûr que c'est avec une certaine hésitation qu'on comparaît devant un comité du Sénat.

Le cynisme, qui existe à l'égard de tous les politiciens, existe aussi à l'égard des sénateurs, et on peut se demander ce que cela peut bien donner. J'ai toutefois confiance en l'appareil politique du Canada. Je veux faire tous les efforts possibles pour trouver des solutions à des problèmes qui sont troublants et que je rencontre à mon bureau chaque jour.

I wanted to mention specifically the Child Advocate Office in New Brunswick, because we have for about a year now a rare event in our legislature, unanimous approval of a bill creating a child advocate. It was something that I had mentioned earlier on in the year in my role as ombudsman that I really felt there was a need for a child advocate. I feel even more strongly today that that is the case. Unfortunately, a year later, we are not much further ahead. We still do not have a child advocate specifically tasked to look at issues involving children and youth.

In fact, we have had a bill proposing amendments that I fear will weaken the original bill in two different ways. Firstly, by limiting the definition of services in the original bill in that the mandate will be, in my view, curtailed. And I am concerned about that. And then the second amendment which concerns me is an amendment that limits access to information that a child advocate would have in investigating complaints regarding children and youth. So, certainly that is one first point that I would want to make.

Certainly as I travel the country, I have met with other ombudsmen, and I have met with child and youth advocates in other parts of the country. Some are dual roles by ombudsmen in some provinces such as Nova Scotia, for instance, our sister province here. Others have completely separate offices. There is no doubt that New Brunswick needs a youth and child advocate. It needs it quickly, and there are certainly serious issues that need to be dealt with.

I will begin by giving a couple of examples, if I can, of why we need this kind of advocate. I know one of the arguments for having a separate child advocate is that ombudsmen traditionally are impartial and are not advocates. They do not advocate. They receive complaints, investigate complaints, hear both sides, and then make recommendations. And certainly that is true of our office. I would hasten to add though, that once we make up our mind on a complaint, then we rapidly become advocates. If we really believe that there is a lack of fairness in the treatment of an individual, and in this case for what concerns us today, a child, then we become advocates for that child. And it is just impossible to remain impartial once we have all of the facts, that we have heard all of the parties involved, including officials of the department. If we make up our minds that in any specific case we feel that there is an issue of fairness, of justice, of rights, then we rapidly become advocates for that child.

I will note for you that I am not giving names because of the confidentiality provisions in our Act, although parents often urge me to talk publicly about their cases, and I may with the consent of the parents. To date I have hesitated in doing that, although I know that the Ontario ombudsman has been of recent date very aggressive and is providing names with the consent of the parents. And it is something that I am considering here.

The first case that I would like to refer to is a case of a young 15-year-old girl who has been diagnosed with a very severe case of paranoid schizophrenia. And the reason we became involved is that the parents have been unable to care for her. The minister of Family and Community Services has obtained custody of that child. It is in learning more about this case that several concerns have come up. And all of these cases relate to what the convention describes as “the best interest of the child.” I am coming at it from that perspective. What is in the best interest of the child?

This girl, at 15, has now become virtually completely institutionalized. She spent the last year in a psychiatric ward in one of our hospitals, and she had very few options available to her.

The frustration of the parents, and I would add my frustration now, is that there has been a lack of cooperation between departments of the same government. Where we have had mental health officials recommending a certain course of intervention for this girl -- and mental health in our province is under Health and Wellness -- where the Department of Family and Community Services are not following the recommendations of mental health officials.

We have had a board and I am trying to think of the board, a medical board recommendation. They had received a complaint and made a recommendation, where the department that has custody has said, “this board does not have jurisdiction over us,” so they have gone outside of their mandate. So we see the classic case of governments working in silos, not cooperating, not working in the best interest of the child. And that has been very, very frustrating for us.
And as well, what we have noted in this particular case is an inconsistency between regions, where one official of a department tells us that when we found out that other regions are providing residential care outside of an institution for this type of child, yet the reply to us was, “Well that region is not concerned about its budget. They will go over budget. We work within our budget.” This is in the same province. In our region we do not do that because it costs too much, yet children from other regions are in residential facilities in this region where this child is in hospital now. So, they are sent by the other regions because the region does not have the facility. The region has a non-profit facility operating that has children from other regions, but children from that region are not admitted because that would cost them to overspend their budget.

So these are the types of issues, and this is a very specific case, that we meet in our work that we find very frustrating. We find it frustrating when our recommendations are not respected as well.

We have another case of a respite care worker who has cared for a disabled child for many years under the auspices of one government department, but when she applied to become the foster parent, she was turned down because the department found out in their investigation that as a teenage mother she had a child protection issue. She had gone to the department for help in dealing with a child, had received assistance, and had received help. This is about two decades later when she applied to become a foster parent. The department turned her down because she had sought help from the same department 20 years earlier after she provided satisfactorily to the department care for a disabled child over several years during the intervening period. Again, my concern is that a straight adherence to policy became the norm, rather than what is in the best interest of the child. It has raised a concern for us as well. Our department made a recommendation that was rejected as well.

We have had several cases dealing with autism and schizophrenia. I especially mention autism in this case where we have referred complainants to the Human Rights Commission. In New Brunswick the Supreme Court has decided that governments can decide what services are covered by Medicare and what services are not. The Supreme Court has decided that very clearly, so it is really up to government whether they want to provide autistic children with services covered by Medicare. In New Brunswick our government has decided to provide public services to autistic children, but only up to age five. As far as I know, there is a complaint at the level of the Human Rights Commission here in New Brunswick dealing with that question.
Il y a donc une question d'allégations de discrimination en raison d'âge, pour un enfant autiste, et cela s'applique à plusieurs enfants.

Suite à la décision de la Commission des droits de la personne, il y a eu des améliorations, mais, hélas, ce genre d'enquêtes se fait sur une longue période, parfois même des années. Ce n'est pas différent au Nouveau﷓Brunswick. L'obtention de services d'une façon diligente et rapide dans la vie de l'enfant est absolument essentiels.

Les parents d'un enfant, de quatre ans par exemple, doivent attendre deux, trois ans pour avoir une recommandation et ils ne savent pas si elle sera positive ou non, et lorsqu’ils reçoivent une réponse c'est souvent, hélas, trop tard. Des parents, ici, comme ailleurs, au Canada, ont établi leur propre agence, en quelque sorte.
D’une façon informelle, des parents dans la région de Miramichi ont mis sur pied un Centre d'intervention pour les enfants autistes, où des fournisseurs de services de l'Ontario viennent -- et ce service est payé par les parents -- une semaine par mois, donner des traitements à leur enfant et, aussi, à d'autres enfants de la grande région du Nouveau﷓Brunswick. Les parents assument les frais.

Les parents font des levées de fond pour couvrir ces services, et offrent eux﷓mêmes des services à leur enfant, parce qu'ils jugent que les services offerts par le gouvernement sont inadéquats. C'est une question très controversée à travers tout le Canada.

Il y a eu un cas important en Colombie﷓Britannique ainsi qu’une décision importante en Ontario, récemment. On verra l'évolution de la loi, mais, certainement, c est une question qui m'inquiète et qui devrait inquiéter tous les parents et tous les grands﷓parents du Canada, à mon avis.

Nous avons reçu plusieurs plaintes de parents qui sont incapables d'obtenir des services spécialisés pour leur enfant à besoins spéciaux. Je pense à un cas spécifique, où un jeune garçon, Ryan, dans ce cas﷓ci, ne peut pas obtenir des services spécialisés, parce qu'ils sont trop rares et ne sont disponibles que pour les cas les plus sévères et les plus cruciaux, selon les autorités du ministère en question. Encore une fois, est﷓ce qu'on met le meilleur intérêt de l'enfant en priorité? C'est une préoccupation.

L'année dernière, j'ai aussi soulevé la question de l'ADHD et de la tendance, partout au Canada et au Nouveau﷓Brunswick, de diagnostiquer trop facilement cette condition, et de trop facilement prescrire des médicaments, le Ritalin, en particulier, pour les enfants.

D'ailleurs, lorsque j'ai fait mes commentaires en public, d'autres personnes mieux connaissantes que moi, y compris du milieu médical, ont admis qu'il y a un problème grandissant du diagnostic de l'ADHD et de la prescription de médicaments au Canada. Je pense que c'est un phénomène certainement nord﷓américain que l’on retrouve aussi dans d'autres pays. On a tendance à prescrire des médicaments aux enfants qui sont agités, au lieu d’enquêter davantage sur les causes de l'agitation. La solution facile est de prescrire des médicaments sans connaître suffisamment, à mon avis, les effets à long terme de cette solution.

On a aussi soulevé la question, suite à des plaintes de parents à notre bureau, où des enseignants leurs suggéraient que, peut﷓être, leur enfant souffrait d'ADHD, et, peut﷓être, qu’ils devraient demander à leur médecin de prescrire du Ritalin.
Following our intervention and the interventions and the public comments of others on this, including Charles LeBlanc who I know is here this morning and has been very outspoken on this issue, the Department of Education sent a directive to its all of its teachers throughout New Brunswick saying that they are not medical personnel and they are not able to and should not suggest any particular course to parents who have children who may be showing signs of ADHD. Certainly I have seen a copy of that directive and it was clear in that respect. So that is another issue that you might be interested in.

Certainly I have suggested a legislative committee look at the increase in the prescription of Ritalin to children suffering with ADHD and the increase in the diagnosis of ADHD. I am just not convinced that it is not being seen as the easy solution.

One issue that is dear to my heart now is the issue of grandparents’ rights in terms of access to their grandchildren in the case of separation and divorce of the parents. We have had several complaints in that regard. We are in the process of preparing recommendations. I know that Quebec has the most progressive legislation in Canada in that its civil code provides there is a specific right of access to the grandparents unless it can be shown that it is not in the best interest of the child, whereas all other provinces, to my knowledge, take the opposite approach, that it is up to the grandparents to show why it is in the best interest of the children for them to have access. That creates a tremendous onus on some grandparents
As a recent grandparent I can sympathise with them and can only live in fear that the same situation could occur. I have been compelled by their stories which are just heart-wrenching, of not being able to have access, of having obtained rights of visitation in New Brunswick, but then having the custodial parent move to another province and having to start from zero, where the other province does not recognize the decision made by the court in New Brunswick.

Contrary to, for instance, support payments, where we now have agreements virtually across North America where if a court provides for support payments in New Brunswick that will be respected in other jurisdictions across North America. I believe there is a need for more consistency across Canada on the issue. It is not a problem that is going to go away by any means, and with the rate of divorce that is familiar to all of us. So I think that is something that needs to be addressed.

There was, I think, quite a very good report from a special joint committee of justice officials from all departments. They made recommendations back in November of 2002. Unfortunately not much has been done since that time.

I have talked about the issue of autistic children. I will not repeat that. I will mention a specific case of a too rigid adherence to policy. Again, this is a case of parents who adopted a child in the custody of the minister only to find out after the adoption that the child suffered from fetal alcohol syndrome. This is a working-class family, not many resources available to them. They returned to the department because they were aware that some adoptions are subsidized by the department if the child has a condition that requires special treatment, therapy, or medical intervention not covered, dental for instance, not covered by Medicare. So they returned to the department. The department said, “Well, there is nothing we can do because our policy is clear. We cannot subsidize adoptions once the adoption is finalized,” although obviously fetal alcohol syndrome is present at birth, and was present without a doubt, when the child was in the custody of the minister.
In this case we spent a year, and I am especially frustrated, and I mention that just briefly a little later on, especially frustrated because the parents have told me that they considered giving up custody of the child after they have had her five or six years because they have been told that the child would receive better services paid for by the province if the child were in the custody of the minister. I do not think that is right.

There have been several cases in Ontario. It has been very prominent recently, where the ombudsman there has tabled a report and the government has promised to act. We have had a few of those admissions ourselves at our office. They concern me greatly, that we cannot find the resources to provide services that children need when they are in the custody of their parents, whereas we would provide those same services were the children in the custody of the department or the minister or the government.
In this case we have made recommendations. I have met with the deputy minister. I have met with the minister. The last thing that my Act allows me to do is to file a special report with the legislature. We have had an ombudsman since 1967. It has never been done in New Brunswick and I will be doing it in the course of the next several weeks because I feel that this is a case that my office has been created to address; that my office has been created to determine whether there are cases that are exceptional that fall outside of the norm that deserve special consideration. I think this is one of those cases, yet I cannot get anyone at the department to agree with me. So we will be tabling a special report for the first time in almost 40 years urging and seeking the legislature’s standing committee on the ombudsman’s support for my recommendation.

As I have said, we have had a few cases that are similar to that. I know I have been a bit too long probably in my presentation, but since you have been so generous in allowing me an amount of time, I will add this case. It relates specifically to section 37 of the Convention on the Rights of the Child where the convention states that children or youth in detention should not be housed in facilities with adults. That is specific to the Convention on the Rights of the Child.

Canada as a signatory has reserved the right to disregard this article in the convention in specific situations and Canada’s reservation reads like this:
The Government of Canada accepts the general principles of article 37(c) of the convention, but reserves the right not to detain children separately from adults, where this is not appropriate or feasible.

Well, I mention it because we have now a situation in New Brunswick where adult males are being detained in the same facility that was built for youth, and has been the object of some controversy in New Brunswick. I am not sure that in this case, and I want to be clear that I can see occasions where it may be feasible to house some adults, particularly female adults because there was an issue in New Brunswick with females being housed in prisons. It is one of my responsibilities as ombudsman to receive and investigate inmate complaints where we have institutions where female inmates are housed with male inmates, obviously in different sections. I would be able to see where it might be possible to house low-risk female inmates with youth in a separate section of this prison that has been especially designed. I do have concern over the housing of male adult inmates with youth inmates, especially where the convention is so clear on this issue. Although Canada has put forth its reservations, I think it is something that we need to address.
Essentially, that is what I had to present to you. I have been a bit long-winded. I had warned you in advance, I have to say Madam Chairman. But I am certainly very pleased to respond to your questions, and hope that it will help you in your deliberations as well.

The Chairman: Well thank you, and certainly the time, I think, was well spent on the examples as they are troubling examples as well as helpful to our study.
Before I turn to the other senators, you did mention finding the Convention on the Rights of the Child. To what extent do you use the Convention on the Rights of the Child? And to what extent do you believe that the civil service here in New Brunswick and the legislature feels bound by that convention? In other words, do they use it? Do they know about it? How often do you refer to it in your work?

Mr. Richard: I would say rarely if ever, and I have been a member of the legislature in the past for about 13 years. I do not know if I ever heard it mentioned once or twice in those 13 years. Certainly we do not use it at our office. We do not refer to the convention. We refer to our statutes and laws and to the rights generally, our Charter of Rights, and the legislation here in New Brunswick. But in my view it is not used at all and not considered specifically.
Because of the rights contained in the convention, and your coming to Fredericton it has allowed me to become more familiar with it, and to do a bit of reading and thinking about it. The rights contained in the convention are rights that are not unknown to Canada. I mean certainly providing services that are in the best interests of the child is a concept that we know very well in Canada, that we use very well. Those words are contained in our own legislation. So, I would say the general rights are known, and I would be very hesitant to overdramatize even those cases that I think are dramatic.

In that I mean this convention is an international convention that would have many more violations in some other countries than they do in Canada. But I am concerned that with the resources that we have available that we do not pay close attention to those rights. Sometimes we will say that we would love to do something, but the resources are limited. You will hear that from elected officials, and from other officials that we cannot do everything. We cannot be everything to everyone. The resources are limited. Yet, it is not uncommon to see tremendously rich corporations receiving tax incentives, rebates, that sort of thing to establish, and there is a balance to be obtained. In my everyday work as the ombudsman, I have seen some cases where I find insistency on not creating precedent, on not recognizing exceptions, on not reacting to situations that cry out for help based on the fact that we do not want to go outside of the policy. That really concerns me. I think even in New Brunswick, which would not be described as the richest province in Canada, that we have resources to address those issues and we are not doing it.
Your invitation for me to come here has certainly helped me become more and better aware of the convention, and it may be that our practice will change over the coming months in dealing with some of these cases that we will refer to the convention because I think it is an important tool that we had not been using in New Brunswick.

The Chairman: That was going to be my follow-up question. You have given us certain examples, certainly the last one about facilities with adults. Have you ever in your reports or your study used the convention as one of the supporting reasons, if not the essential reason, of why you believe services should be provided or attitudes, policies, or laws should be changed?

Mr. Richard: Well, ever is a long time, and we have had an ombudsman for 38 years. I have been the ombudsman for almost a year and a half now. I have not used it.

The Chairman: Not. Okay.

Mr. Richard: Clearly, I have not used it. But as I say, having become more familiar with it, I think it is something that will be very useful to me. I am thinking of the specific case of the report, because generally we do an annual report, and in fact, the tradition in New Brunswick has been to do an annual report which is essentially a statistical report of the numbers of complaints, the types of complaints, the departments concerned, all of that, without recommendations. For the first time this year we have had a report with recommendations, not dealing with children’s issues specifically. For the first time we will be tabling a special report dealing with children’s issues where this convention may be, in fact, cited. In fact, I can pretty much guarantee it at this point.

Senator Oliver: At the beginning of your remarks you indicated that you were a little cynical about a Senate Committee coming here to talk about this, and you did not know what effect it might have. I wanted to say that a number of the questions that you have raised today about the child who is suffering from paranoid schizophrenia and so on is a subject that is now being studied by another Senate Committee led by Senator Kirby, and it will produce a landmark report that will ultimately change and resolve a lot of the issues that you have raised today.
You should also know that the same Kirby, LeBreton Committee, has produced the major report on health care in Canada. There was a decision of the Supreme Court of Canada last week, and when you read the decision carefully, and the Kirby Senate Reports, you will find that the Supreme Court decision that is going to restructure health care delivery in Canada is based largely upon the Senate Report, and not the Romanow Report that cost $15 million.

So this Senate does in fact have a major role to play, not just in human rights but in many other things, and I wish more Canadians knew that. So, thank you for giving me that opportunity to make that statement. But an awful lot of good work is done by the Senate of Canada and this Committee. If you look around, Senator Pearson, Senator Andreychuk and Senator Poy are examples of the kinds of people who make up a lot of the good work.

My question deals with the difficulty of this subject because of the jurisdiction of the Constitution of Canada. The federal government has certain jurisdictional powers, and the Provincial does. I realize that you have had many years as a Liberal member of the Provincial House, but your first position was as Intergovernmental Affairs minister. So that is why I want to put that question to you because that was your first expertise. Because of our federal framework, provincial governments have exclusive jurisdiction over some aspects of the law, whereas the federal government ratifies international instruments like this instrument on the rights of the child. One of the first things you said today is that you are the ombudsman for the province, but there is no child and youth advocate for the province. I would like to know from you, given this federal/provincial dichotomy that we have on this entire area, what is the best way and the best forum that we should have for an office of a child and youth advocate in New Brunswick? How should it be funded? Who should be there? What should be their mandate, their powers? Should it have lawyers, social workers, psychologists and so on? And how should it be structured so that we can get something that will help us adequately implement this covenant that has been ratified by the federal government?

Mr. Richard: Yes. Well thank you for setting me straight on the usefulness of the Senate. And I apologize for probably repeating comments that you hear from the general public. I know that you are aware of that and the Gomery Commission has not helped the level of cynicism with regard to public institutions, but I should know better than to repeat those kinds of things. So I thank you for setting me straight on that.

I have already expressed my views on not only the need for a child and youth advocate in New Brunswick, having been a Cabinet minister, I am mindful that there are costs to establishing those kinds of offices. So I have indicated that in a province like New Brunswick where the numbers, because of the population, will be limited, that we should look at the model that Nova Scotia has. Nova Scotia has recently asked its ombudsman to take on the responsibility for the child and youth advocate issues.
I think that is the most efficient way of doing it, where you do not have to duplicate administrative and technological resources. We have a case management system that allows us to track complaints in our office. You would not have to recreate that in a separate office with perhaps three or four people.
As a former social worker, I would say that it is important to have social workers doing this job. As a lawyer, it is important to have lawyers as well, and I have access to lawyers in my office specifically. But we deal more with administrative type issues, and that would be expanded or slightly different with the added responsibilities for a child advocate, or in a separate office for child advocate, but I do think that it would be important to have officials that have knowledge of child welfare issues, social work techniques and policies so that they in investigating complaints, they would know whether procedures are being followed and appropriate services provided. I have access to a legal advisor in my office and I think it is an invaluable service because we have to always look at not only policies and programs, but also legislation, regulations, interpretations of these. So having access to a legal advisor, I do not think you need a separate one, if you had a combined office.

Senator Oliver: Combine the offices, yes.

Mr. Richard: Certainly that would be a saving in terms of efficiency in my view as well, and that you would not need a separate highly-paid, perhaps too-highly-paid administrator such as myself, in a separate office if those services were combined. So I have already stated publicly before a legislative committee that I think this is something that has been now, in a bill that has been approved unanimously over almost a year ago, late June last year, and that it can be up and running within a matter of weeks.

Senator Oliver: What kind of budget would be required to do the entire province of New Brunswick?

Mr. Richard: The province has set aside in its budget this year about $400,000.
Senator Oliver: Would that be enough?

Mr. Richard: Yes, I think it would be enough, initially. In fact, I think you probably could do it with less than that if both offices were combined because, as I have said, you would not have to duplicate services. In fact it could be up and running within a matter of weeks, with a budget of probably around $300,000.

Senator Oliver: Does that include money to actually train and advise youth and children what their rights are?

Mr. Richard: Yes. That is an essential role. But not only advise youth, but also to advocate for you. There are several instances where that can be done including before the legislature, but in other ways as well by conducting studies on certain specific issues. I think of the gap in services for the 16 to 18 years old. It has been an issue that has been raised in New Brunswick for several years. There is an issue for children between the ages of 16 and 18 who no longer live at home and their access to some services. That is an issue that has been around. It likely would deserve some attention from a youth advocate, as soon as one is appointed because at our office we deal with about 3000 complaints a year regarding inmates, income assistance clients, injured workers, anything that you can think of that concerns government provincial services.

Senator Oliver: But today when you were talking about youths, the main types of complaints you talked about were kind of medical, paranoid schizophrenia and so on. What about education and the justice system? Surely children’s rights in New Brunswick have been violated in those areas, as well. Have you had many cases in those two systems?

Mr. Richard: Yes, I think they are very often connected. I give the example of the autistic children who are entitled to services until they go to school and then the
Senator Oliver: So that will be the education component of it?

Mr. Richard: Yes. The government position is that once they are in school there are other services available. But we all know that those services are woefully lacking, and certainly do not compare to the services that are available before they go to school, even if those services are judged inadequate by the parents. They have been forced or felt compelled to hire private services on their own and are paying for it at a huge cost. It is a cost of tens of thousands of dollars a year per child. So, yes.

Obviously, there are issues that we have responsibility for, youth in prison at this point. On a regular basis we do visit the Youth Detention Centre on the Miramichi and we deal with complaints emanating from that institution.
Although ombudsman for a short period, I recognize that these are the types of investigations that will take a lot more time. They are very complex. They deal often with medical issues, mental health issues, and other types of services, and so it is hard to compare. Two hundred complaints regarding children, I think would compare probably with about 3000 complaints that are miscellaneous and deal with all kinds of issues, some that can be dealt with quite easily. I do not think that would be the case with children’s complaints. The fact though is that there is no child and youth advocate, so we are not going to turn down a complainant because there is no child and youth advocate. We are dealing with those issues, but we do not have the resources nor the clear mandate to deal with those. Certainly I feel very strongly that it is overdue in New Brunswick. It is needed.

The Chairman: Senator.

Senator Pearson: Thank you for a very interesting presentation, and for a clear commitment to the rights of children. If I may so, I think it is clear in everything you say that you understand the rights respecting them, even if you have never used it or rarely used it as you said. We are, of course, hoping that you will now be using it more.

We do note that the Province of New Brunswick is required to do a separate report to the Committee on the rights of the child. We have read the last one that was done, and so there are people within the bureaucracy who are aware of this, and that the convention itself, while it is ratified by the federal government, and it is the state responsibility, required letters from every province and territory before the ratification took place.

I think in the last piece of the convention, which is the optional protocol on child prostitution, child pornography, and so on, New Brunswick was fairly early on sending its letter, and it is just about “there is a letter in the mail”, from the last province, and the protocol will be announced shortly.

I think that we are very interested to hear the description of the child and youth advocate office and we are a bit curious in some ways as to why they would think of amending it. If I can read between the lines of what you said, that the kinds of amendments that concern you are amendments that relate probably to resources, and the fear that this will bring about a sense of entitlement that the government bureaucracy is nervous about.

Mr. Richard: That would be my interpretation as well.

Senator Pearson: However, we hope that maybe our presence here may help to spur this along. I think that those provinces that have had child advocates, and we will start with the oldest one which is Ontario, and it is just about to get the legislation, it is supposed to pass this month to make her an officer of the legislature. She has been extremely active, and of course the ombudsman there has helped on this whole issue on the –

Mr. Richard: Of giving up custody.

Senator Pearson: Giving up custody, which has always been one of those things which makes no common sense. I think that the child advocates, as they work together in their Canadian association, have been a good strong voice on the national scene as well. So, you know, to have yet another mandate, or officer, will help to strengthen that association which I think is one in which the different provinces are able to learn from one another and come to common ideas. They clearly structure themselves around the Convention on the Rights of the Child, every one of the different officers. I have worked with them for a long time.
The question I am going to ask is on behalf of one of our colleagues, who is on this Committee, Rose-Marie Losier-Cool, who is of course a senator from New Brunswick, and of course is retained in Ottawa for the moment since she is the whip.
On her behalf I have to ask the question about French language. As you know on the Convention on the Rights of the Child there is a right to culture and identity and so on. So in the work that you have done, and particularly if anything has come across your plate with respect to children, are there any issues related to the access of children to the language, not just in school, but in child care and in other kinds of facilities?

M. Richard : Depuis que je suis ombudsman?

Le sénateur Pearson : Oui.

M. Richard : Il y a, au Nouveau﷓Brunswick, un commissaire aux langues officielles. Donc, les plaintes concernant les services dans l'une ou l'autre de langue officielle, seraient acheminées vers le commissaire aux langues officielles. Notre bureau, même s’il recevait une plainte, la référerait au commissaire. Évidemment, le Nouveau﷓Brunswick est quand même la seule province officiellement bilingue au Canada.

Il y a eu des améliorations énormes au cours des années. On a maintenant la dualité au ministère de l'Éducation, où on a un ministre et deux sous﷓ministres et des services, certainement en ce qui concerne l'instruction, le curriculum, par exemple, qui sont offerts séparément par les deux communautés linguistiques à travers des écoles qui sont organisées en fonction de la langue. Donc, au niveau des écoles, je pense que l'on peut dire qu'il y a eu des progrès énormes et que la communauté minoritaire est bien desservie ici. Nous avons quand même pu, au cours des années, adopter d'autres législations, par exemple, la Loi sur l'égalité des communautés linguistiques de langue officielle au Nouveau﷓Brunswick. Le principe de cette loi a été incorporé à la Charte canadienne des droits et libertés, spécifiquement pour le Nouveau﷓Brunswick.

Suite à Charlottetown, il y a eu un amendement important qui garantit davantage les lois. Je crois qu'au Nouveau﷓Brunswick, on a quand même fait des progrès très importants au cours des années.

D'ailleurs, le sénateur Oliver a mentionné que j'ai occupé le poste de ministre d’État aux Affaires intergouvernementales. Dans cette fonction, j'ai eu le privilège de faire la promotion du Nouveau﷓Brunswick comme site du Sommet de la francophonie tenu à Moncton, en 1999. Souvent, je donnais l'exemple du Nouveau﷓Brunswick comme étant une juridiction où les droits de la minorité avaient été obtenus sans violence, de façon très difficile.

Étant Acadien francophone, vivant au Nouveau﷓Brunswick, je suis conscient, comme beaucoup d'autres personnes, qu'il faut être vigilant. On a tendance à parfois oublier que ces droits sont importants en principe, mais ils sont plus importants parce qu'ils existent dans les faits et qu'il faut être constamment vigilant.
S'il y a des lacunes, je dirais que c'est peut﷓être au niveau des soins de santé. Dans certaines régions, il y a eu, au cours des années, des plaintes selon lesquelles certains hôpitaux n'offraient pas des services de qualité égale à leur communauté minoritaire. Je pense, particulièrement, à la région de Miramichi où un tiers de leurs patients sont francophones et où il y a eu des plaintes au cours des années.
Je sais que chaque corporation régionale de la santé au Nouveau﷓Brunswick fait des efforts pour offrir des services de qualité égale aux deux communautés. Je pense qu'il n'y a pas de problème majeur. Évidemment, il faut constamment être vigilant. Il y a toujours des améliorations à apporter, mais je pense que, en général, il y a eu quand même des progrès importants au Nouveau﷓Brunswick.

Senator Poy: Mr. Richard, I just want to go back a little bit to your office as ombudsman. There is no child advocate at this time in New Brunswick, but obviously from all the cases that you have talked about you have handled a lot of cases to do with children. What would be the percentage of cases between children and adults that you have handled in your office?

Mr. Richard: I wish I could give you a specific number. It would be a small number in terms of percentage.

Senator Poy: Yes.

Mr. Richard: As I said, last year we handled 3000 complaints.

Senator Poy: Yes.

Mr. Richard: I would say –

Senator Poy: Approximate?

Mr. Richard: If we have had a hundred relating specifically to children, that would be the number. I mean I hasten to add that these are cases that are much more difficult for us to handle. They are often very complex. They involve issues of custody. The involved medical issues as Senator Oliver has said. We talked about a child who has been in a psychiatric ward for almost the last year. These are issues that are very, very complex, involve several health professionals, and professionals from other non-health departments, and I am thinking of Family and Community Services, for instance. We have dealt with youth in the Youth Detention Centre here in New Brunswick. So I think there are sufficient numbers, in my view.
One of my frustrations has been that because our mandate is not specific to children, and our resources are lacking, and I have mentioned that publicly several times, that we really are not able to provide the type and the quality of attention that I think that we should to those cases. I really feel strongly about that. I am really concerned about that.

Thankfully we have three law students and a business student working at that. When you look at the fact that in my office, other than myself and my legal advisor, I have four investigators, that doubles my investigative staff for four months. With all the qualities that they have, they need to be trained, they need to become accustomed to the work and before you know it, unfortunately they are gone and then we start again, usually with a new batch the next summer.
We really do not have the resources to handle these types of complex cases. But again, I would say that although the numbers may be low relative to the total number of complaints that we have dealing with all kinds of issues, tax assessments, road work, certainly you cannot really compare those to a complaint regarding an autistic child or a child not receiving speech therapy for instance, where the department has a position in a certain region and you cannot fill that position because they are so hard to come by. Yet parents identify a speech therapist in private practice that could provide the services, and the department says, “No we cannot do that.” So they are saving money on their budget because they cannot fill the position, and yet the child is going through critical months and perhaps a year or more waiting for these services that need to be provided in a timely basis. So, although the numbers are not high, I think they are seen by me and by my staff as critical complaints that deserve our attention. Unfortunately we cannot give them all of the resources that they deserve, in my view.

Senator Poy: So, there must be a lot of other complaints that do not get to you?

Mr. Richard: Absolutely.

Senator Poy: Now, who would have been handling those? Would Family and Community Services be handling all of the other complaints for the time being?

Mr. Richard: I think so. I think they end up with the departments. We found those people do not know we exist. People do not know that we deal with these kinds of complaints. But we do talk to complainants and find out that they are very frustrated at the way they are being dealt with.

I understand that, having been a social worker for three years, you have a specific mandate, you have policies, and so the unusual, exceptional cases disarm you. So having someone who can look at it from an impartial independent point of view -- being an officer of the legislature as I am, I do not report to the Premier or to any Cabinet minister. I am completely independent and report to the legislature, and that gives me the opportunity to speak out without having to report a supervisor, and having to administer specific policies.

I am not surprised when we get the response that, “Well, you know, the policy is clear, or the program is clear. We cannot do anything other than what we are doing.” Although I am not surprised, I think it is my role to point out that this is an exceptional case, and that perhaps a fair treatment would be to go outside of the norm or of the policy. It is not possible for officials who are employees in the department to do that very easily. It is not possible for me to do that very easily because I know the types of responses that I get when I raise those issues. So, I think it is not fair to expect that officials of the department, employees of the department, that department, or Health and Wellness to do the kinds of things that an advocate should do.

Senator Poy: You mentioned that the best for New Brunswick is to follow the Nova
Scotia model, to have the ombudsman and child advocate in the same office. Now, you mentioned that legislation is being passed to that respect?

Mr. Richard: No.

Senator Poy: I did not understand.

Mr. Richard: No, the bill was before the legislature and was approved unanimously last year, but then amendments were introduced in January of this year that provides for the establishment of separate –

Senator Poy: And it would cost a great deal more?

Mr. Richard: Well, in my view it would cost more. That is my opinion.

Senator Poy: Yes.

Mr. Richard: I state it humbly, but in my view it would cost more. I think it is pretty obvious. I think that in a small province like New Brunswick to set up a separate administration, that valuable resources would be spent on administrative issues that should be spent on providing services to children. So I have made that plea and stated that case.

The legislation is in place. It has not been adopted yet. There is barely a week or two left in our legislative session and the amendments have not been debated yet. I was hoping that it would go to a legislative committee so that I could address the bill. I am sure that others would want to address the bill, but that has not been the case. I do not know if it will be adopted before the end of the session. If it is not, then normally our legislature will not reconvene before approximately mid-November of this year. Before an office is set up I think in practical terms it could be a year and a half, two years. I think that is unfortunate because the people are crying out for those services.

Senator Poy: Has anyone proposed a bill to sort of include your office with one of child advocacy?

Mr. Richard: No, but that would not be very complicated.

Senator Poy: No?

Mr. Richard: Essentially, it would be that the bill describes the mandate, and that is fine. It would be essentially a very minor amendment stating that perhaps even for, and I have suggested it, even for a transition period, because it is possible for us to be up and running very quickly, that they could designate the ombudsman as the child advocate for a period of two or three years, a transition so that you can judge what resources are required and if a separate office would be better. I am sure that could be done fairly easily, if the will is there.
I cannot help but mention that, for instance, recently there is an issue in Saint John, our largest city, regarding a liquid natural gas plant that the municipality has agreed to provide a significant tax rebate on property taxes to the proponent of the project that is $5 million a year for 25 years, which is a large amount of money. But because our current legislative framework does not allow a municipality to provide that kind of incentive, there needs to be an amendment to our Municipalities Act, and that appears to be going in leaps and bounds to allow that to happen. I think there is a need for, in some cases, incentives. I express no opinion on whether that is a good thing or a bad thing.

Senator Poy: Yes.

Mr. Richard: But what I am saying is that when we want to make legislative changes and the will is there, then it certainly can be done in a hurry.

Senator Poy: That is right.

Senator Oliver: Well, it is the Irvings. It is New Brunswick’s politics. It is the Irvings versus the province. I mean it is a --

Mr. Richard: As I say, I make no comment on ...

The Chairman: You have used the phrase “the best interest of the child.” You have referred that it is in the convention. I am going back to your social work days and my old Family Court days. Very few parents ever say they do it because of selfish reasons. They want custody of the child, or they want to restrict, often using the phrase, “I am doing this because it is in the best interest of the child.” Grandparents also. Rarely do family service officers say that they are putting their own stamp or opinion. They are always couching it, “We believe this is in the best interest of the child.” So my question out of that is how do define or how do you get at the definition of best interest of the child? Who do you listen to? The child, or all of these advocates on behalf of the child? So that would be my first question to you.

Mr. Richard: I think it is an excellent question really because it is not always easy to tell. I can tell you that in dealing with cases I would say that the majority of the complaints that we deal with we find to be not substantiated. Once we have done our investigation, we have obtained all of the information -- and I mean I have long learned that there are two sides, and sometimes three and four sides to every story -- and so that many of the complaints that we have, we have come to the conclusion that what is in the best interest of the child is, in fact, being done by the officials. There are those cases where we have concerns and where we have expressed concerns.

The key in my view is having an independent office to look at these issues. Someone that has access to all of the available information, that has access to expertise, either in terms of social work, law, or other services, investigative services but expertise, and that is able independently to gather all of the information and to come to some judgment and conclusion. That to me is essential. If you are in a jurisdiction where you are expecting officials of a government department to assess how they are doing, and I have read the New Brunswick submission, the one on the convention that they have done, essentially we are asking officials of government departments to assess themselves. I think chances are they are going to say they are doing pretty good. So, the key in my view, is to have an independent official, such as a child advocate or an ombudsman, and to allow that official to have access to all of the pertinent information and to look at all services relating to children. Not to restrict their mandate, and if you do that then I think at the end it always is an issue of judgment. But to provide someone independent with the tools to do their job, I think is the best guarantee that you will have the best results.
It is never black and white, and it would be wonderful if every complaint that we get we could say with absolute certainty that this is, “Yes, this is what needs to be done and this is a clear violation.” It is rarely, rarely that. So we have to exercise our best judgment as long as we have the tools to do it, and that we are independent from the agencies that we are investigating, then I think we have the best possible way of coming to a state of affairs where we respect the conventions as completely as possible.

You have turnover in departments, social work is a tough job, and there is a high turnover rate here in New Brunswick and I am sure it is no different in other jurisdictions. So it is very difficult. Then they have all of the pressures internally from their departments, their supervisors, and fear of ... these cases tend to be often very interesting for the media, and so there is a concern always about that I find. So, the important ingredient, in my view, is having somebody independent with sufficient resources to look at these complaints in a detached way, and if we do that then we will do the best job possible.

The Chairman: We have a second round. I have all the senators wanting to ask a question. So if I could ask everyone to be efficient in their questions and their answers. Thank you.

We have allowed the cameras in. We often do not because of the kinds of testimony, but we thought this might be a good educational resource. Do you have any objections to them?

Mr. Richard: I do not find them intimidating in the least bit.

The Chairman: No. I think you have 12 years of experience.

Senator Oliver: I would like to go back to the constitution of Canada. As you know, there are provincial and federal rights given in the constitution. Many of the issues that affect the rights of children are shared jurisdictions. Take health, education, law and justice, and property and civil rights provincial and so on. Our federal government, who signs these international treaties, UN Treaty on the Covenant of the Child, often does not consult with every province before it does it. Then the federal government starts to implement some of the terms of that covenant and we do not have any overarching, overriding system. So should we look at having some standard enabling legislation to implement international treaties in each of the provinces? What is your view as a former provincial cabinet minister on that relationship between the federal and the provincial governments?

Mr. Richard: I think as well this is an excellent question because it is an issue that we have struggled with. I would almost have a different answer for Quebec than I would have for the other provinces. As you are well aware, Quebec is very concerned about any federal encroachment in provincial jurisdiction, so I mean it is a never ending issue. But, I really think that if we can find a way to work together on issues such as health care, and address the waiting lists, the lack of resources and training of physicians, and we can work across boundaries in doing that, for the life of me I cannot understand why we would not find the same resolve on the rights of children.

I think even with our complicated federal system, if there is a political will to find a way to work together to make sure that our interests and our obligations as a country require that we work together, then I think we should, and we can. I think it has been shown on other issues and on other important subjects. Well, I cannot think of any issue more important than the rights of children. So, I think it is possible, although it is difficult, I agree, and at times it seems impossible.

Senator Oliver: What about enabling legislation? Do you think that we should have some standard legislation that can be recommended in all provinces to help enforce these international agreements signed by the federal government?

Mr. Richard: Certainly we do have a lot of work in Canada that is done on uniform legislation for instance.

Senator Oliver: Yes.

Mr. Richard: So it is done on a continuing basis. But certainly when you touch the subject of jurisdiction, then it becomes a lot more difficult. I would be concerned that we would lose a lot of time debating issues of jurisdiction where we have shown that informally we have been able to overcome some of these. I am thinking of child care, for instance, that certainly it seems that across the country the provinces are agreeing with the federal government on a new program.
So, as we often hear here in New Brunswick, the resources are in Ottawa, the jurisdiction is in the province. But if it they are able to do it on the issue of child care, and then on the issues of the rights of the child, it is possible informally as well. I am just concerned that if we are looking for a too formal cadre that we may waste valuable time. I cannot disagree that it would be better if it were formally agreed to. I am just not sure that we can get to there, but certainly we have been able in the past to agree to do it informally, and if that is the way that it should be done, then I am with that as well.
Senator Pearson: I have a particular interest in the civil and political rights of children. Youth participation is something I have been working on a lot. We had been struck with our interview that we had with the Children’s Commissioner from New Zealand, that she had the statutory obligation to consult with children. So it was written into her statute. I am just thinking this because since this is still in the process of evolving, your child and youth advocate, whether you might think about, as you make your presentation, putting in something of that sort.
We were struck yesterday in Newfoundland speaking with some young people for whom the discovery of the Convention on the Rights of the Child had been transformative. It was extraordinary. They had really not known about it. So we failed badly in educating, which is part of our obligation under the convention.
One of the things that one of the young people said was that she would really like actually to see the vote go down to 16 because then she would be forced to think about being involved in politics. I was not quite sure whether this was the way to go, but her sense was the need to build a critical mass of young people who are going to be prepared to take part in the political process, and the way in which I have been thinking about defining the political rights, because political and civil go together. I mean the articles in the convention 12 to 17,the right to participate in decisions affecting you, the right for free assembly, the right to privacy, the right to free expression and so on, which are in some way civil rights, but they are tied to political rights because unless you have those you cannot do the other. So I would be interested in hearing if you have a reaction on the political rights of children?

Mr. Richard: Well, thank you. It is not something, I confess, not something that I have thought about a great deal or considered. My spontaneous reaction would be that given the level and quality of adult participation in our democratic institutions, I cannot see that they would do much worse. So when we look at the fact that the rates at which adults are voting, the cynicism that exists, often the lack of interest in some critical issues, that sort of thing, certainly I do not think that we could do much worse. So I do not have any objection in principle. I know there is a fair bit of work that is being done on that now, perhaps by a Senate Committee, I am not sure, but I have read a bit about it, so that would be my spontaneous reaction.

Senator Poy: I would like to refer to some of the specific cases that you mentioned in your presentation. There was one that you called grandparents’ rights. Now, I would like you to please expand on what these rights are in New Brunswick? I have always thought of it as really for the best interests of the child that the grandparents have access to the child or grandchildren.

Mr. Richard: Yes.

Senator Poy: Can you speak on that please?

Mr. Richard: There is fairly limited mention in our laws on the rights of grandparents to access. There is a mention of grandparents’ access in our Family Services Act. It does not specifically protect grandparents’ rights to access. Essentially, you are absolutely right, that the best interests of the child is of the foremost importance, but it is up to the grandparents to establish that they have a right of access, that it is in the best interests of the child for them to have access.

Grandparents in New Brunswick, and in Ontario as well, have organized under a group that I think it is called GRAND. I am not sure exactly what it stands for. Their impetus has been to have legislation in all provinces that is similar to the legislation in Quebec where it is assumed to be in the best interest of the child that the grandparents have access. I think in virtually a very high percentage of the cases that would be right, but it is really up to the custodial parent to establish that in any specific case that it is not in the best interests. I can imagine some cases where it may not be in the best interest of the child, but then the onus is on the custodial parent to show why that is the case.
Often in cases of separation and divorce, certainly there are, not always but often there are hard feelings and the custodial parent may not want to very easily provide access to the parents of the other spouse. So I think that really I have come to believe that the Quebec approach is the better approach. It just changes the onus completely. From my readings and research, I have not come to the conclusion that it has been a disaster in Quebec, and the feeling is it does provide easier access.
Court cases are expensive. They are becoming more expensive. It is not easy to use the courts. If you have the onus working in your favour, and the judges have to interpret your request or application in that light, I think it makes it easier for grandparents.

We have had several complaints here, and I have met with a number of grandparents and corresponded with others, who are just completely disheartened by situations where they have access for a number of years and then as a result of a separation usually that access is cut off, and where the children have been spending weekends, summer vacations, have had regular outings with their grandparents, and then all of a sudden because of a separation that the custodial parent has decided that there will be no contact with the ex’s parents. Although it is not impossible, it is very difficult to obtain access.

Senator Poy: So that is the case in New Brunswick at the moment?

Mr. Richard: At this point, yes.

Senator Poy: You were talking about the 15-year-old girl who was diagnosed highly paranoid schizophrenic. She is hospitalized but there are cases because of resources that people in other regions could be sent to the hospital where she is hospitalized, but it does not work the other way? Could someone like her then not be sent to another region and live in a residential setting?

Mr. Richard: Services are provided on a regional basis. If you reside in that region you deal with the authorities in that region.

Senator Poy: When you say region, it is a region within New Brunswick?

Mr. Richard: A region within New Brunswick.
In this case the girl is in a psychiatric ward in a hospital. There are residential facilities available that provide counselling and residential care for girls like her or youth like her but that region has taken the position, I have been told directly by the official, that the region takes the position that it is too costly, and they have a budget in which they have to live. But that same official readily admitted that those residential facilities in that very region have children who come from other regions, but those regions have decided that they are, in my view, that they are putting the best interest of the child first, and that they will overspend their budget if it is in the best interest of the child. So, I mean, I raise the issue because it concerns me that there is not a consistent application of policy throughout the province.

Senator Poy: But as ombudsman, though, could you not say, “You have to.” The other region with residential treatment, could you not impose that on them?

Mr. Richard: I could certainly make the recommendation. I cannot impose.
Senator Poy: I see.

Mr. Richard: All I can do as ombudsman is make a recommendation and the department deals with my recommendations as it deems fit. That is an ongoing case for us, so we were not at the end of our road with that one, but I thought I would mention it because it is one that has bothered me.

The Chairman: You talked about teachers sometimes suggesting medical answers for their students particularly with attention deficit, and I presume fetal alcohol problems. We know that there is an increase of bullying, and difficulties of supervision of young people in schools. We know that many of the abilities to restrain children have been removed from teachers. In other words, either intervention physically or otherwise is not allowed, or is frowned on depending on which jurisdiction you are in. Do you believe teachers are reaching for this medical answer as part of a supervision problem in the schools? Or do you believe they are doing it because they are overstepping their bounds thinking they have the medical answers for their students? Which do you think it is?

Mr. Richard: Well, clearly, I think your first comment is the most likely one in that teachers are being asked to manage classrooms where two, three, four, five, six, seven students have special needs. They do not have the resources to deal with those students. In New Brunswick we embrace a school system where all students are integrated, and I think it is a wonderful thing, and a tremendous progress from the time I was in school, a very short few years ago, but it requires resources to do it properly so that the students who do not have special needs are not penalized because they share a classroom with others. Teachers are struggling with that. I know from talking to teachers on a regular basis that they are really struggling. The nature of the classroom has changed dramatically. So the easy answer for a child that is agitated, hyperactive, overactive, is to perhaps tell a -- not all teachers do that. But there have been cases, and it has prompted the department to send a directive. So I am assured that that is the case, but it has prompted some teachers to tell parents directly, “There is medication for little Tommy, you know, and it is called Ritalin. If you talk to your family doctor, he can get it for you.” Parents are sometimes, you know, struggling as well, and teachers are people in authority, and so it is possible for them to overstate the case in my view, and cross the line into, “I am having difficulty with little Tommy. We are looking at different resources. Perhaps we can arrange for a meeting with the school psychologist or something.” It becomes kind of the easy solution for a classroom that is already pretty difficult to manage because there are too many children who require resources that are not available.

The Chairman: Thank you. I think we have come to the end of our time. I think I am going to just make a comment. You were a social worker and I used to be a Family Court Judge so we share, I think, some of that history.

You indicated that you were less concerned about putting female adults with, I presume, female juveniles. My understanding was that we often do that because we think that females are less disruptive, less influential, and that seems like that is a benefit to women. However, in many of the studies it is probably a disservice to future generations because we are finding that women can be capable of some of the same attitudes, behaviours and crimes that males are. Consequently, I just put an exclamation mark around that, that that may not be in the best interest in the long run for making that gender differentiation.

Mr. Richard: Yes. Just a brief comment for the sake of clarity. I understand what you are saying. Obviously there is a notorious case, well publicized lately about a female inmate.

In New Brunswick we have a situation where we have overcrowded adult jails, where females are housed with males. We have a new youth facility where there are separate modules, quite separate, physically separate, on the same piece of ground but they are very separate, and the government has decided to handle its overcrowding problem by putting male inmates in the youth facility in separate modules. But if they need to deal -- and I understand the need to deal with the overcrowding problem because we get the complaints that result from that -- it would be perhaps more feasible to use the youth facility to house female inmates. But, I take your point, and I know you have much more expertise than I have in that, and I appreciate your saying so.

The Chairman: Well, mine is a bit dated since I have been in the Senate some 12 years now. But even if they are separate modules, we know that attitudes of care workers permeate walls, as interestingly so do conversations and attitudes of those housed. So, I share your caution in doing that, but my point was first on the gender.

I thank you for your commitment to your position, and for so openly and honestly sharing both the dilemmas here and your suggested solutions. We hope that our report will support some of the work that you are trying to do, and hopefully will support the young people in this jurisdiction. So thank you for your very valuable time today.

M. Richard : Je vous remercie de l'opportunité de pouvoir vous adresser la parole sur une question qui nous touche tous et toutes et une question qui est importante pour notre société.

Je suis très heureux d'avoir eu la chance de vous adresser la parole et de pouvoir tenter de répondre à vos questions.

The Chairman: Senators, our next witness is Susan Reid, Director of the Centre for Research on Youth at Risk. She is also an Associate Professor with the Department of Criminology and Criminal Justice at St. Thomas University.
Welcome. Perhaps you would like to highlight some points, and then we can go to questions.

Ms. Susan Reid, Director, Centre for Research on Youth at Risk: Thanks very much.
A well-known journalist for one of our Toronto-based papers reported in a series of articles on the reality of life within our youth detention and correctional facilities. The tragedy of suicide by a 16-year-old young man held in locked detention, along with 140 others who were awaiting trial, after being denied bail draws attention to the rights of youth who have been deprived of their liberty. She begins the article with "God forgive us for the harm we do to our children simply because we can." It is with this opening thought that I come today to speak about the work that has been accomplished in our quest for ensuring that our most vulnerable members of society, our children, are protected from harm and are provided with opportunities to grow and develop in a supportive and caring environment.
Canada has made significant progress in ensuring that young people are afforded rights as part of our Canadian Charter of Rights and Freedoms, but we must look beyond our federal laws to ensure that youth are afforded those rights and freedoms outlined in the UN, the more universal declaration of rights enshrined under the UN Convention on the Rights of the Child.

Drawing on the four fundamental principles set out in the articles of the convention, my remarks will focus on the best interests of the child, the child's right to non-discrimination, the right to life, survival and development, and the right to participation.

I come to you today as a criminologist who has studied youth justice issues for over 20 years. My background in child studies, criminology and education has provided me with an interdisciplinary background to apply to my research interests in the area of child, family and youth studies. Having come from away -- as I said to Senator Pearson earlier, I grew up in Ontario and I am going to always be from away when you speak of people in the Maritimes. I am sure Senator Oliver will recall those comments. I feel very much supported in my home here at St. Thomas University, in a small liberal arts university, having come from a larger institution, the University of Guelph. We pride ourselves on our commitment to social justice at St. Thomas, and it is home to the Atlantic Centre for Human Rights. We continue to expand our work under the leadership of your colleague, Senator Noel Kinsella. As a small undergraduate institution, we pride ourselves very much so on our ability to reach out to those who may be a first generation of young people to attend university.

In my first year here, 1997, it was after the tragedy of the Westray Mine disaster, and I remember in my first year class of a young man who seemed a bit out of place. Bad teeth, if you will, very tall, shirt not able to be tucked in, but just full of that Cape Breton spirit. And I followed him, had him in three or four classes throughout, and the proudest moment was when his mother came to the graduation to see her son walk across the stage as the result of the disaster that led to his education. And it is that pride that we, as a small undergraduate Catholic university, seem to empower young people that may never have had that opportunity to come. So it is within that context that it fits very well for me and my passion for young people, as well as the Centre for Youth at Risk. I will leave that for you to read in terms of our mission and mandate, in terms of what the Centre is about.
As we focus our attention this morning on Canada's international obligations for children's rights and freedoms, it is important to recognize the government's progress toward a better life for children and youth. There are many initiatives that have been put in place to ensure a healthy start to life for young children with the most recent announcement by the Minster of Social Development for a national daycare strategy. Investments in the form of career and skills training through government-initiated youth grants have provided many people with a hope for the future. We seem to recognize that the investment in community development is an important part of the overall solution to ensure that children, youth and families are supported. Initiatives such as the national strategy on community safety and crime prevention and the national homelessness initiative have shown the government's support for broad community development strategies to strengthen the links between individuals, families and social institutions.

We still struggle, however, with those young people who become enmeshed in the machinery of either our child welfare systems or our youth criminal justice system.

These disenfranchised youth move from one caseworker to another attempting to find a place which will support them in their quest to move from childhood through adolescence on to a healthy young adulthood. The pain and suffering of many of our youth at risk has been a focus of our work at the Centre for Research on Youth at Risk. While grappling with legal interpretations of the concept of the best interests of the child over the years, we have often been remiss in seeking out and listening to the voice of those young people who are actually involved within the system. Senator Pearson has been a champion for that voice of children and youth, and we are slowly seeing the results of her continuing crusade.

I was disheartened to hear that she is not going to be continuing on the Senate but has wonderful plans after that crazy birthdate for a wonderful initiative that will be happening at Carleton.

In the development of the new legislation to replace the controversial Young Offenders Act, the government should be commended on the work that was done with the renewal of the youth justice strategy which preceded the proclamation. It provided an opportunity for communities to engage in public education about youth crime generally and young offenders in particular. From my estimation it allowed for the community to be prepared for alternatives to custodial settings and be more aware of the myths that had previously surrounded what had been called a young offender. Prior to the proclamation of the new legislation, Canada had incarcerated far too many young people, and I was shocked to find that we are much higher, four times higher, than the United States.

The struggle continues in terms of what goes on in terms of looking at these disenfranchised individuals. It has been shown through the years that acting in the best interests of the child by an adult supporter may have a series of unintended consequences that prove to be problematic for the young person.
When we move through this discussion that follows about the Juvenile Delinquents Act, the Young Offenders Act and the Youth Criminal Justice Act, something has happened in terms of our ideology about the best interests of the young person. It seems to me that one of the things that is missing in this is that we have moved so far right to a crime control model that we have forgotten that these young people also need protection.

If we look to the next page, at page eight, I wanted to draw your attention to a Nova Scotia Supreme Court decision where we still need to follow, despite the fact that we have, in fact, reduced incarceration and we no longer can rely on the youth criminal justice system as a way to deal with some of our child welfare matters. We still have to look at the lack of resources that are provided for such young individuals as this young woman who was provided here in the discussion.

If we turn to page nine, the learned judge said in reviewing the sentencing judge's decisions it was clear that there were a number of errors in law. The issue before the sentencing court was that the young person was a troubled 14-year-old who was not able to return home to live with her parents, and it was believed that she was living on the streets.

When we look further down, this decision clearly underscores and corrects many of the problems of the Young Offenders Act about it not being involved with using custody for social measures. It leads us to a problem in terms of the judge's remarks that, "The entire series of events started with the primary offence where this troubled young person took a piece of pepperoni." And unfortunately many of the young people that have ended up in our system have had to commit an offence in order to get the necessary mental health, substance abuse treatment, and so on. So we need to be clear that, when we look at these rights of best interests, we not lose sight of the problems of not providing sufficient resources to balance out the child welfare side.
Looking at page 10 about young people being housed in adult jails, I feel that I have been harping on this point for too many years. This issue needs to be dealt with. We have no reasonable reason as to why we still continue to house our young people in adult jails, and I am concerned that as time goes on and we do, in fact, reduce the number of young people that are in our young offender facilities, that those beds become available. And why not, given the reservation to the article under the UN convention, move our adult offenders into those facilities? In fact, in our province, for an interim period of time at our one youth custody facility, we have had to use those beds on direction from the province because an agreement that had happened at the federal level to house those adult offenders from our local detention centres in penitentiaries did not have enough space. So we must not -- and I really strongly mean this -- we must not at one point reduce incarceration, yet expose those serious so-called offenders to adults, because they are not throwaway kids.
Looking further, I wanted to draw your attention about non-discrimination, and Barry Stuart in a classic case about who are the kids in our jails and the need for us to look at other articles within the UN convention to be very clear that we are not talking just about the deprivation of liberty:

Our jails are overflowing with people who suffer from substance abuse, have few employable skills, are mentally challenged, are significantly disconnected from mainstream society, and whose lives are characterized by little, if any, support from family or community. Many have been to jail so often, they have become institutionalized. Most have lost the connections to community and family that induce constructive lifestyles. These are the people who fill our jails.
That is not something for our country to be proud of.

I wanted to move on as well to this issue at page 12 about the issue around having his or her rights to privacy protected under the UN convention. And there is a long sort of discussion about the evolution of this practice in terms of the publication of names, but I put it under this particular heading because I still very strongly believe that, if we are going to have a separate system of youth justice, then all those young people that come before a youth court need to have that protection regardless of the fact that they may be serving an adult sentence. They are still seen as young people, and they need to have that protection as guaranteed under the UN Convention on Rights and Freedoms.

We have solved some very important problems in that we no longer try young people in adult court and go through that double jeopardy provision of having them found whether or not they could be tried and then try and they were almost guilty on (inaudible) and I feel really good about that choice. That was a wonderful choice that the government made. But we still have to be very careful that we recognize that we are still dealing with kids. And placing these kids' pictures in the newspapers is bad. I recall at one point giving testimony in the House of Commons many years ago about some young people from Portage drug and alcohol facility where they were addressing the all-party committee on whether or not we should place their names in the newspapers. And at that time there was a member from the Reform Party who had very clear ideas about what should and should not happen. One of the young lads stood up and said, "Mr. So-and-So, sir, I am a drug lord from downtown Toronto, and I would love it if you put my name in the newspaper, particularly the Toronto Sun, because do you know how much that would cost for me to have a full-page ad taken out?" And, you know, that sort of shut the comment down because really the kids' perspective is that they do not care. You are only really punishing the parents and providing some of these substance abusers with a great deal more advertising. So I am still harping on that whole question about publication.

Let us look to the back because this gets on to the more fun stuff. Enough harping already, Susan. We are on page 16, article 12, about the right for children to participate, and I go on to talk about what is valuable. One of the books that I found most interesting and sort of a popular book that the general community could pick up and not be all scarred with all our academic references that us scholars tend to place, and this is a book by two Saskatchewan lawyers, Green and Healy, who wrote a book called Tough on Kids. The middle of page 17. I think this is probably the most salient argument that has been presented in quite some time. They suggest that a simple question should be put to every young person who comes into the juvenile justice system: What can we do to convince you to join us in using your personal talents and strengths to build a better life for yourself and our community? What a novel idea. And as we look on from this, I know that Senator Pearson is aware of my involvement with the National Youth in Care Network, and I believe that they have met with this committee in the fall and have had a strong voice in being able to present what it is really like to be a youth in care, youth in custody. I have also had the privilege of working with them on two projects, one that was sponsored by the youth justice renewal strategy in terms of ways of helping communities better prepare for the new legislation, and the other was a Health Canada project on teen moms.
One of the most salient points about this project was that the way it was designed was that there was an equal partnership between myself as the adult supporter of youth and a young person who was a researcher. So not only was I mentoring a young person, but I learned so much from those young people that some of our literature that had been done on peer helping was thrown completely out the window in the context of what their own lived experiences had been.

In the middle of page 18 you will see some of the comments that formed a consensus by the young people and the adult supporters at a national roundtable of what would be seen as most necessary for creating this curriculum, and I am proud to say that this curriculum has been used in a number of locations, particularly the Toronto Children's Aid Society. It was a fabulous experience and one where I would encourage other researchers to actively engage young people, not just have a token voice. It was phenomenal.

The second project was one where I was approached by the Network again about teen moms, and my immediate reaction was "Oh, my goodness, they are having so much negative publicity to begin with in terms of teen pregnancy. What angle are you going from?" Well, surely it was the angle that I adored, and we had an opportunity to take a group of young women who had had their babies while they were still living in foster care and go on a retreat with the moms and the kids, and I took my sons with me who were at the time 11, and we all participated like family in terms of a lived experience of not only being mothers ourselves, but also the lack of support that they had received, particularly as being a foster child and being pregnant. The outcome of that has led to three or four publications by the National Youth in Care Network, which will form public education in terms of some of these stories. You can read on some of the comments that the girls had to say.

In terms of a conclusion, there are a couple things I thought were starting points for some questions. I have been honoured to be a board member of the Vanier Institute of the Family for the last six years, and this year we embarked on a project with Dr. Reg Bibby of the University of Lethbridge entitled, "The Future Families Project ." This was sort of a departure for the Vanier Institute in that we normally take data that has been collected by Statistics Canada and we normally do not go out and gather our own. But we felt that that was only so much of the story, reporting on what had been given in census data, and we really wanted to look at what were the hopes and aspirations of Canadian families. So when Canadians were asked "What is your greatest hope for your kids", one in two said happiness. For our vulnerable children and youth can we hope for happiness? Further on in this study, comparisons were made between what Canadians say they themselves want out of life and what their expressed hopes are for their children. Two core values stand out in this analysis, with the importance that people give to relationships, family life, being loved, having friends, and the importance they give to freedom. I wonder if these same core values could be applied to our vulnerable children and youth.

Again, I wanted to close with a comment from our Saskatchewan lawyer, and it is really not because you are from Saskatchewan; it is phenomenal:

Of the thousands of children who have confided in us, most feel marginalized, excluded, and disenfranchised. For such youth, hopelessness is real. The belief that they may some day have a decent home, a good job, money to buy clothes, food, a car is so remote. These youths do not see a clear or even a fuzzy path to their own personal successes. And that is the difference between youth who are marginalized and mainstream youth.

It is my hope that this committee will continue to promote Canada's involvement in the struggle to educate Canadians on the importance of the convention and to provide the leadership necessary to ensure the rights and needs of our most vulnerable members receive top priority. Thank you.

Senator Pearson: Thank you very much for that presentation. I look forward to reading it all through thoroughly. I think the work you have been doing and the attention you have paid to the need was a new way of phrasing it in the sense that young people in trouble with the law are in need of protection. So it is not youth in need of protection; it is a different concept. I think that is a very important one to underline, that we have additional responsibilities towards young people that we may not have towards adults. I think that the stories that you have been acquainted with are very planned.

I am interested in almost everything, but I was interested in the project about the teen moms. I mean, I think it is a challenge for us to know how to bring the best kind of support and assistance, and I think the quote that you write about -- I could see quickly here a quote here about --

Ms. Reid: About the foster families.

Senator Pearson: The one about the foster families, I thought that was remarkable. But also the young girl who says that it is the child who gives meaning to her life. In our study of young Aboriginals, the Senate Standing Committee on Aboriginal Peoples undertook urban Aboriginal youth. We had the same kind of experience across the country, meeting in Winnipeg with young people of 16, 17 with children, and it was having the children that turned them around.

Ms. Reid: That is right.

Senator Pearson: What you are leading to and what I would like you to comment a bit more on is this whole issue of mentorship, of the importance either of peer relations or mentoring. Could you expand a bit on that?

Ms. Reid: I would be happy to, yes. We had a brief discussion before we convened here in terms of focuses that happen. It came partly out of the peer helper network and the training that went with that. But the experience that we had in gathering, and this is a form, I suppose, of qualitative research where you are in the field and you do not have any pre-supposed ideas about what it is that you are going to find. But it is very difficult to not have bias because, as I said earlier, I would not go into it unless I was clear that we were not going to have a hallmark on "Here we go again. This is a bad thing, to get pregnant." And the support that was needed came from the young people themselves, and the adults do very little in that process. I gathered their stories. They thought they could not write, and the whole idea of this weekend retreat was called "Mothering as Your Muse" with the idea from the network that they could write down their birthing stories. Well, they cannot write. They have not had any education; they have been criticized all of their educational life about their inability to be an academic; and they really honestly believed that they could not write. So we tried videotaping. We videotaped the sessions sitting like you would in a pyjama party, on their beds in the dorms, and talked about what my experience had been as a mother of twins who delivered babies naturally, and their experience and all of a sudden there was a connection. It was not because I am an expert on young offenders or youth or know a lot about adolescent development. It was a lived daily experience that seemed to make the difference. That is the difference between a so-called expert clinician psychologist and an adult supporter of youth. I am not necessarily in the same realm as a youth advocate, but I would see myself as being able to open up a person's eyes or their ability to share their story in a way that perhaps had not been done before. It is the capturing of that that provides lessons for more experienced front-line professionals so that they can take that and use that as a starting point perhaps for a mentoring experience because not everybody has that ability to connect. So how do you train someone to be a good mentor? You can list all the qualities in the world of, you know, you need compassion and empathy and so on. But sometimes you need a discussion starter or something that people would actually believe happened to someone else. And it was that lived experience that I have been able to capitalize, I think, the most in terms of not just collecting data for data's sake, but being able to give something back in terms of applied research.

The same thing happened, I might add, in terms of the work that I did on school violence. We were partnered with Toronto, and we followed along with Reverend Dale Lang. If you recall, his son was killed in Taber, Alberta. He was doing a school tour as part of the crime prevention initiative. So I was doing this project on school violence and trying to look at kids' perceptions of that. So we toured around with the Reverend, and he spoke, and then the kids would go back to their home room and they would fill out this questionnaire, which is tedious, and of course I got great quantitative data, but what felt really meaningful to me is that the bell did not ring after the assembly. The kids got a chance to go back and reflect on their own lived experience of whether or not that applied to them. And the questionnaire for me was yes, a research instrument, but I probably would not have done it if I had had to just go into the school and say, "Okay, today you are not doing math; you are going to fill out this questionnaire." It had to have some sense of meaningful involvement for the young people for me to be able to participate, and that is who I am as a researcher. The young people who commented afterwards in the halls would say, "You know, we do not really have a problem with violence in the school. We just do not want people intimidating us or, you know, sexually harassing us or saying bad things about how we dress." And, again, that is a springboard that is totally different, geographically and otherwise, from what you are going to see in downtown Toronto. And it is not a one size fits all.

So a mentoring relationship as you started with may work in one situation that would be totally different elsewhere. You cannot create a binder that you pull off the shelf and say, "This is how you work with this population." Does that help?
Senator Pearson: Yes, that is helpful. I think the right of a child for guidance is not just the right of the child to be guided by his or her parents. It is a right to have access to older people, significant others and mentors. And I think it is an underrated capacity within our community to do it, and I am glad to have you emphasize it. It is good for us to have this on record. Thank you.

Ms. Reid: If I might add just one more piece about this mentoring business. We had a challenge presented to us because was also have a Third Age Centre at St. Thomas and a program in gerontology. So a colleague of mine in gerontology and myself took it upon ourselves to try to bring young offenders and seniors together because of this idea of intergenerational programs, and we often see these programs for, you know, grandparents and little pretty kids. And my big beef, I suppose, is that that is all well and good, but what about those nasty adolescents that dye their hair? And we ended up creating a resource after this pilot part, but the most interesting story was we had tea up at St. Thomas. We brought them together for lunch because I find that if you feed people, they always have something to talk about. We had no agenda. We provided sandwiches and, you know, some pop and some chips, and they sat at tables, and we paired people together, one group of residents from an open custody facility, some university students, and some other kids to see what would happen if you brought the two together. And at first it was really awkward and they did not know what to say to each other. And one of the kids was there against his better judgment because he had been kicked out of school, and he sat there with flat affect and his hat down and his feet up. And one of the church ladies, as I call her, because she goes to my church, came over in an exuberant way and said, "Do you know anything about dyeing your hair because, you know, my friends, they go every week to that beauty parlour and they get their hair rolled up and once a month they pay to get it dyed, and I just cannot afford it. Oh, my God." And she went on and on about her hair, right, just as you can imagine, this woman that goes out, you know, with her senior friends. And the guy kind of looks at her like she has 42 heads and says, "Yeah" and he takes off his hat and it is like 82 colours. And she is going "Yeah, like that." And no reaction. No sort of "Oh, my God, your hair is spiked and, you know, coloured." "How do you do that?" And he says "Well, I just do it myself." "Well, I have looked at those kits in the drugstore" in a regular sort of tone. And once we saw that, I said you know, this could happen in rural communities throughout the Maritimes, particularly when you are bringing people together that may not be young offenders but may be at risk kids that just need somebody to sit down and talk to. And that is again mentoring. That is not a forced program. So we went out and asked a bunch of kids and a bunch of seniors about what the problems would be and then came up with, you know, sort of some ideas about how you might put that together.

Senator Oliver: Have you ever thought of dyeing your hair?

The Chairman: I was going to say will we run into many ladies with lime green or purple hair as a result of your mentoring?

Ms. Reid: There you go.

Senator Oliver: It is my opinion that it is not in the best interests of a youth or a child to be incarcerated, to be in prison or to be deprived of their liberty, and with that you have a section in your paper called the child's right to non-discrimination, and you talk about the effects of poverty and crime. One of the things that was missing from your paper was the demographic breakdown on that. For instance, I know as a fact that in the United States most of the adult people who are behind bars or in jail are black. I need to know from you when you talk about the child's right to non-discrimination and the correlation between poverty and crime in Canada and youth crime and youth incarceration, what is the demographic and ethnic breakdown of these youth and children in Canada?

Ms. Reid: I cannot cite statistics straight for you, Senator Oliver, but I will definitely get some information for you. I can tell you that Aboriginal populations are four times more likely to be incarcerated, particularly out West. We are catching up with the girls. Before we started to “decarcerate,” girls were almost as likely as boys in terms of gender to be incarcerated for violent offences.

Senator Oliver: That is Aboriginal?

Ms. Reid: No, girls generally. In the Aboriginal population it would be three or four times more likely than just the general population. In terms of age, they tend to peak at around age 17, so there has been an ongoing controversy about whether or not we lower the age or up the age, but I think we are probably just about right. In fact, I have made the argument that we might want to put it off to a higher age, to age 21, which would, in fact, allow that period of adolescence to go into young adulthood and keep the protections of the youth justice system for a period longer because we know that kids generally grow out of kind, and the longer that you can keep them out of the adult system, the more likely we have a chance to rehabilitate them.

What I was getting at in that particular section was to draw attention to the provision in our provincial legislation about non-discrimination as based on social condition, which I am trying to make the argument that we know for a fact that the more likely choice for many of our kids in detention is jail because they have no place to go. If you take two kids of equal offence rating and one has money and the other has not, then what is the likelihood that the person with money is going to jail? Very little. And so what I think we are doing is discriminating based on social condition because there are not the resources of both parents at home to watch and monitor that young person pre-trial, and we are talking about kids that have not even been convicted of offences. And the idea of social condition and being discriminated against based on social condition is just one of many positions I would argue that our young people are vulnerable to. Black youth are more likely --
Senator Oliver: I would like to look at the demographic breakdown. For instance, take Toronto. You have talked about Saskatchewan. Take Toronto, and take Jane and Finch, in that area, and what do you think the demographic breakdown is and what do you think the relationship between crime and poverty is? And if you looked at the colour of those involved, I think that it is a significant factor that you and your research really have to look at, particularly when you are looking at forms of discrimination that are affecting the rights of children.

Ms. Reid: That is right.

Senator Oliver: Because it is my view, based upon my research, that if you are a visible minority, if you are black, that your rights are more quickly taken away and removed than if you are white. And so when you are talking about the social condition of people, their colour is also a major part of the social condition and it has to be addressed. And I would hope that more social scientists would actually research that and comment on it because it is holding Canada back.

Ms. Reid: I totally agree. And we would not want to follow in the footsteps of the United States because one in three young people in the southern United States is likely to end up in jail, if not already, and those persons of colour, and it is not just black, I mean, the Latinos as well. And that is an alarming statistic that, because of your colour, the likelihood of you going to jail has nothing to do with your behaviour.

Senator Oliver: Do you have any statistics or numbers on Jane and Finch of the
Toronto area at all?

Ms. Reid: No, I just know that my former mother-in-law grew up in that area, and it is frightening to live there. It is very frightening to live in that area because the crime rate is so high that people cannot live there. She was a senior and had to move out of the centre that was her home. All her kids were raised there. It just did not feel right. And, despite the fact my sister-in-law works at the Jane-Finch Community Centre and, you know, knows many of the people in the community surrounding her mother's home, she felt that she could not protect her, and so she has now moved to Nova Scotia. And that is frightening, to have where you have grown up all your life become so populated with crime that you cannot live there any more.
Senator Poy: I am going to go back to mentoring that Senator Pearson was talking about. Usually when we talk about mentoring it is adults mentoring young people, but I am just wondering in the courses that you give at St. Thomas, first of all, is it very popular for the students to take the courses on youth at risk and also whether many of the university students would like to mentor youth at risk?

Ms. Reid: That is a wonderful question, and I think my colleague, Bob Eckstein, who is sitting back there, who also works for the Department of Public Safety here and also teaches a section of young offenders, and I can both vouch for the popularity of that course in particular, which is not even a required course for the major in criminology. We have some plans underway that I was speaking to Senator Pearson about because of the popularity of that particular focus and a desire to work in partnership with the Atlantic Centre for Human Rights to develop a major in child, family and youth studies. With that I would like to have a service component, not a practicum because it would not be a pre-service professional program, where youth are required to spend a certain number of hours mentoring. So my ideal is to have a storefront in the Fredericton Mall, which is right across from where the high school is, to have our education, social work, and child youth studies students provide counselling. Get the probation officers up there, get the police up there, get the drug counsellors up there at lunchtime and have these students be the mentors and tutors for the young people who are in the high schools.
Senator Poy: But that would be like a top-down thing. But has there been interest expressed by the young people who take your courses that they would like to do that?

Ms. Reid: Oh, yes. That is where it sort of came from. Many of them are looking for volunteer opportunities, and the market in Fredericton is certainly flooded. Many of our students work for Chimo and the homeless shelters, and there just are not enough services. Like this would be not creating a new resource to have more funding. It is a needed resource that the other agencies cannot assist. Many students work with Big Brothers/Big Sisters; they work with the Boys and Girls Clubs; they volunteer in after-school programs. So there is certainly an interest, yes.

The Chairman: In your paper you talk about the use of the justice system and, if I am reading you correctly, that we use it when, in fact, the real issues are either mental health or child welfare issues. Am I correct in that?

Ms. Reid: That is correct. I am making that argument.

The Chairman: So in Canada we are still not providing the resources at what I call the front end or early enough and, therefore, the justice system seems to be the only way that we trap them?

Ms. Reid: They are falling through the cracks.

The Chairman: They are falling through the cracks still. I just read your case, and that is what led me to that conclusion, that we have changed from the Young Offenders Act to the Youth Justice Act, and while it in itself may have some good tools, the net result is that is has not changed the dynamic. We are still using the courts because it is --

Ms. Reid: I really do not want to bash the new legislation because there are so many parts of it that I feel really strongly about supporting, particularly the restorative justice components and so on. Let me rephrase my argument. I think it is really important that you do not just change a law that was providing a service even if we did not agree that you had to commit an offence to get drug treatment without providing the drug treatment on the other side. And that case really illustrates that, that no, we cannot use young offender court for social service requirements, but where is the money to support the social service requirements on the other side? It has not happened. We just said no, we can no longer, as we did under the Juvenile Delinquents Act, take kids who were committing status offences and put them together with kids who were aggressive and violent and say they all need protection. But yet again I do not think the new legislation goes as far right of crime control to say we want to punish all these kids either. It is trying very hard to balance that need, to look for restorative solutions and mediation that will allow for community involvement. But there is not the money to support the community to create those opportunities, nor the specialized mental health services, child psychologist services, sometimes need for children's residential mental health services for those kids that so require that.

The Chairman: One of the other points was Canada put a reservation on the Convention on the Rights of the Child so that they could, in fact, house youth with adults, allegedly at that time because there were a shortage of resources and it was not expedient or was not seen to be a priority to make facilities available. The most often used defence was northern Canada where we would be separating the young people from their families, and the distances are great, the settlements are small. Have you done any studies to see whether, in fact, that is how Canada uses the reservation, or has it been used throughout Canada?

Ms. Reid: I only have this based on conversations, so it is not a random sample of agencies by any stretch. But we have used it, unfortunately, as a way to make sure our beds are full, in even places like the Toronto East Detention Centre. And I know that there has been phenomenal changes that have happened in Ontario. But there is no excuse for having kids in adult detention centres in Toronto, period.

The Chairman: Is it happening in New Brunswick?

Ms. Reid: Well, as I mentioned earlier, yes. I pride ourselves on the fact that we have lowered our incarceration rate of young offenders down to about 35. Kids currently being incarcerated are in one facility. We have one secure custody facility. But unfortunately the Canada/New Brunswick agreement for people who are serving more than one year as adults is no longer a viable option insofar as the penitentiaries are full, and so there is no place for these people serving over one-year sentences that would not have been a penitentiary inmate to be serviced. And a group of adults were brought to the New Brunswick Youth Centre to be housed there. If you want a description of the youth centre, it is a cottage style facility that is very modern, but in order for the adults to be exercised, if you will, in the yard, they are within sight and sound of the young people that are in the institution, and I do not find that acceptable. Now, it is my understanding in conversations with the Department of Public Safety that this was just a temporary stopgap measure and that they are leaving. But again, if we did not have that reservation, that could not be a temporary action. We would not be allowed to do that.

The Chairman: Just following up on that, are the authorities that you have dealt with or studied aware of the Convention on the Rights of the Child and its reservation, or are they acting without knowledge of that? I mean, is it expediency that is driving it or are they utilizing these efforts without knowing that there is the violation under the convention?

Ms. Reid: I would have to answer that both ways. My moral will would like to say that no, they do not know, okay? How do we leave it at that?

Senator Pearson: I have a quick question because the ombudsman this morning here spoke about the issues of the kids 16 and 17 who are technically youth in care.

Ms. Reid: Yes.

Senator Pearson: He was deeply concerned about that and felt that New Brunswick, along with I think a few other provinces...

Ms. Reid: Six other provinces.

Senator Pearson: And I know that one of the issues that we would perhaps think about recommending in our report will be a kind of more uniform way of protecting young kids up at least until the age of 18. So could you give us a bit more about what has happened in New Brunswick about that in that age group? I can remember Matthew Geigen-Miller's study.

Ms. Reid: That is right.

Senator Pearson: Which I think is something that I would recommend to the Committee.

Ms. Reid: Yes.

Senator Pearson: We will talk about it later.

Ms. Reid: My own involvement here in Fredericton with the 16- and 17-year-old problem is as a chair of the board of directors for a home for girls that is specifically designed for 16- and 17-year-olds that does not receive funding from the province. It is called Youth in Transition, Chrysalis House, that was developed by caring individuals that said these girls have no place to go and they have fallen through the gaps, that they were not children in need of protection, and they are not old enough to receive welfare. Some of them received small amounts of student assistance but not enough to live on their own. This is most shocking, and you will find this particularly salient to your other work in that most of these girls were sexually abused, and when they started to experience their own sexuality, they disclosed that they had been sexually abused and of course could no longer live in their home.

Senator Oliver: Sexually abused in their homes?

Ms. Reid: Or by a family member somewhere along the chain of the nuclear family. So they need to be out of their house, but where are they going to go? And if they had been 15 when they had disclosed the sexual abuse, the child welfare authorities of course would come in and find that child in need of protection and keep them until they were 21. But they are 16, and so there is nothing. There is one day difference in some cases of kids between 15 and 16. And as a national group of people concerned about children and the alarming statistics of the number of middle school children who are engaging in sexuality, we want to encourage young people to have good attitudes and education about sexuality. But surely to goodness when they start to explore their own sexuality and they start to understand that that was bad touching, we need to be able to support them. And it should not matter if they are 13 or they are 17. They are still young people under the age of 18. We have only been able to service about five girls a year. We have done really well with the girls that were there. But, because of resource implications, it has had to close three times because there is not the money to provide a proper home. You know, we own the facility. It was put together by local residents. And even with the mortgage being paid off, there still is not the money, from a variety of volunteer organizations and fundraisers and bake sales, to keep a place like that running. But there would be if they were children in need of protection. I feel really strongly about the 16- and 17-year-old issues, especially related to youth homelessness. Where do those kids go? Kids living on the street, and we have them here in Fredericton who live under bridges, and they have no place to go. There is some ongoing research that a colleague of ours from the centre is doing on youth homelessness and trauma and is starting to recognize signs of post-traumatic stress disorder as a result of living on the streets. Does that help?
Senator Pearson: Well, I mean, it reinforces my concern about the fact that I think we will find as we cross the country that there are several provinces where there is this gap between what will kick in for you at 18 and what stops for you at 16, and it really is unacceptable. Thank you.

The Chairman: Just to follow up on that, if you have the recollection, not the experience, when the Young Offenders Act came in and changed from the Juvenile Delinquents Act, there were provinces that had the criminal age at 18 and others at 16. Was New Brunswick one of those?

Ms. Reid: No, they are 16.

The Chairman: Sixteen. And so they went to 18 with the criminal law. But the Child Welfare Act stops at 16.

Ms. Reid: Sixteen.

The Chairman: Okay.

Ms. Reid: The other thing that is quite interesting about New Brunswick is that there was a push in the New Brunswick Education Act for school leaving age, and they increased the school leaving age from 16 to 18. So you could, in theory, have 16- and 17-year-olds required to go to school without a home.

Senator Pearson: I think that is a very clear example.

The Chairman: Thank you. Thank you for your report and for being here and the work that you do. We will be following, and our emphasis has been on the application of the international instrument, particularly the Convention on the Rights of the Child. So I hope you will look to our report with that view. So thank you very much for coming today.

Ms. Reid: Thanks very much for having me.

The committee adjourned.