Justice Committee on Dec. 5th, 2018

[Elissa Lieff]

What we tend to do in legislation is to incorporate the principles that are in a convention and see that they're reflected in what is done in the federal legislation. For example, here there's the focus on the best interests of the child, but there's no need to incorporate directly the language that's in the convention, or allude to it, or refer to it specifically in the legislation.

As you've stated, Canada is a party to the Convention on the Rights of the Child, for example, so we are required to bear that in mind when we—or actually you—enact legislation at the federal level.

[The Chair, Liberal, Anthony Housefather]

Are there any other interventions?

Ms. Sansoucy, the floor is yours.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Allow me to insist. Actually, it is all very well for us to have signed that convention, but, each year, the United Nations rapporteurs allude to the improvements that we should make in order to keep faith with our commitments. A number of witnesses have indicated that, if it is not explicitly stated, the UN rapporteurs will report negatively about us once more.

[The Chair, Liberal, Anthony Housefather]

I just want to be precise in my clarification, because I really want to understand. I know this was discussed.

My understanding is that there is a convention in Canadian laws not to name international treaties inside a bill. There can be references to international treaties in the preamble, but not in the bill itself. Am I correct that this is a convention in Canadian legislation?

[Elissa Lieff]

Yes.

[The Chair, Liberal, Anthony Housefather]

Okay.

I believe that is the real reason.

You have the perfect right to disagree, but I am satisfied by that answer to my question.

Are there any other interventions?

Let's vote on amendment NDP-2.

(Amendment negatived on division.)

Now we'll go to PV-5.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This amendment builds on the considerations for determining what is in the best interests of a child. On the basis of a lot of testimony, and of course, how we all feel as individual members of Parliament, we're well aware that indigenous children are apprehended at an alarming rate. I know this is also looking at family law issues, but just to put it in context, we have more indigenous children apprehended now by social services than used to be in residential schools. Therefore, we have an ongoing concern that when decisions are made about what's in the best interests of the child, if that child is an indigenous child, there are other considerations that should be taken into account.

The amendment I'm putting forward here as PV-5 deals with strengthening the determinations of what's in the best interests of the child by adding that, in the case of an indigenous child, the importance of preserving the child's cultural identity, connection to community and rights of indigenous people to raise children in accordance with culture, heritage and traditions be a positive and required consideration. Otherwise, there's no additional lens for the best interests of the child when it's an indigenous child.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Once again, I have to oppose this. This is already dealt with later on the same page. In proposed paragraph 16(3)(f), “the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage” must be considered as well. Therefore, I see this as redundant and unnecessary.

[The Chair, Liberal, Anthony Housefather]

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Maybe I should have amended that section, but I felt it was at the level of primary consideration, and as an umbrella clause, it was a better place to put it. However, while this throws in the idea of “cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage”, it doesn't speak to the rights of indigenous people to raise their children in accordance with their rights, culture, heritage and traditions, and the importance of preserving a child's cultural identity.

In the existing proposed paragraph 16(3)(f), it just says this is a factor for consideration in the circumstances of that child. It doesn't speak to any particular higher order of concern when the child is indigenous.

It's related, but not redundant at all.

[The Chair, Liberal, Anthony Housefather]

Can I ask a question? Given that this amendment would presume to create a primary consideration of culture and heritage solely for indigenous Canadian children and not for Canadian children of other traditions, heritage and culture, could that not be seen as discriminatory in the sense that other people might say, “Why is my heritage, culture and tradition not as important to the child as the indigenous heritage, culture and tradition?”

[Claire Farid]

Certainly it would be identifying only one aspect of culture. If you look at the criteria in proposed paragraph 16(3)(f), you'll note that there's a more general reference to cultural, linguistic, and religious heritage, but indigenous heritage is included as one example of that.

The other aspect as well is that the ideas of indigenous upbringing and heritage would also capture the concepts of cultural identity and connection to community.

[The Chair, Liberal, Anthony Housefather]

We'll have Ms. May, and then Ms. Khalid.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I would answer your question by pointing out that I'm Anglican. I'd love in any separation issue to have a hypothetical child raised Anglican. I don't have any constitutionally enshrined rights about my ability to exercise rights in that sense.

Section 35 of the Constitution recognizes that indigenous peoples are not in the same category as other groups. They are not stakeholders we're dealing with. We're also dealing with a marginalized population where we know we have been separating indigenous children from their families over and over again, first with the residential school system and now through the actions of provincial governments in terms of social services. If our family law fails to take account of this, we are putting indigenous culture in the same pot with a factor to be considered.

Yes, we'd like them to be raised with their family that came here from Scotland, or we'd like them to be raised....

This is very specific. This is sui generis. Indigenous status in this country is not like the others. It's constitutionally protected but has been more deeply abused than others.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

The other thing I have a problem with in regard to this amendment is that the whole focus or the primary foundation of this act is the consideration of the best interests of the child, and here and now, suddenly we're talking about the rights of the people, the rights of the parents, basically, which I fear will derogate from that principle of the best interests of the child. The rights of the child have to be paramount and I feel that this does derogate from that.

[The Chair, Liberal, Anthony Housefather]

I understand what you're saying and I don't disagree that indigenous Canadians have been mistreated in greater numbers and have higher incarceration rates and higher rates in foster care. There's no doubt of that. However, linguistic rights of the English and French communities are constitutionally protected. Multiculturalism rights are constitutionally protected. I'm just concerned about singling one out in a primary consideration when everything else is a secondary factor to be considered. That's why I raised that question.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I have a feeling that this amendment will not receive support, but I would just say that in adding it to primary consideration, it has no impact whatsoever in determining the best interests of the child if the child is not indigenous.

You'd have to look at our family law system. Our social services system over generations has been a whole lot of non-indigenous people deciding to take the children of indigenous people away from them. As an experiment, it hasn't worked well for indigenous children, indigenous parents or society as a whole. This is an effort to remedy that.

[The Chair, Liberal, Anthony Housefather]

Understood.

Is there any further discussion on this one? If not, let's proceed to a vote on PV-5.

(Amendment negatived [See Minutes of Proceedings])

Mr. McKinnon, I would just note that I assume, based on what you said earlier, you're withdrawing LIB-14 because it is in a different place but similar to the construction of PV-6.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Yes, I will be withdrawing LIB-14.

[The Chair, Liberal, Anthony Housefather]

I would note as well that if PV-6 is supported, CPC-3 proposes the contrary. CPC-3, when we get there, would then not work because it actually is saying exactly the opposite. However, PV-6 is perfectly in order to be proposed at this point in the bill.

Ms. May, you have the floor on PV-6.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

This comes from evidence presented by Shaun O'Brien and the language here is based on the B.C. Family Law Act.

I've had lots of visits from family law lawyers in B.C., because we see it as a model act. The B.C. Family Law Act has been extremely well received and has really helped with sorting out issues in parenting orders and making sure that parental time, when it's in the best interests of the child and there's isn't a threat of violence, and so on.... It's very clear that sharing parental responsibilities has worked extremely well for the best interests of the child and also for the health of the family unit altogether. The family unit may be split, but it is still, in many ways, a unit, and the way that the British Columbia Family Law Act has worked has been very positive.

That's why I hope you'll consider this amendment.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Are there any further interventions on amendment PV-6?

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Once again, I heard this testimony and I was very taken by it, but this act studiously stays away from presumptions. It's based on the fundamental principle of the best interests of the child, and there are no presumptions.

Here, we're trying to add negative presumptions and I think that's a mistake. That's why I'm withdrawing amendment LIB-14 as well.