On Friday, April 29, the jury in the Inquest into the Death of Katelynn Sampson, delivered a number of significant recommendations which are founded on the rights of children, particularly the right to be heard but also their full rights under the UN Convention on the Rights of the Child. Katelynn was only 7 years old when she was murdered by the two people with whom she had been placed by her mother who was not able to care for her. The evidence called at the inquest documented many instances when other significant people in her life, included educators, child protection workers and police, failed to effectively inquire about the abusive circumstances in which she lived. The jury also heard evidence about how the UN Convention on the Rights of the Child establishes important human rights to protection and participation; if followed, they might have prevented the tragedy. Katelynn’s Principle endorsed by the jury is derived from the Convention:
The child must be at the centre, where they are the subject of or receiving services through the child welfare, justice and education systems.
A child is an individual with rights:
•who must always be seen
•whose voice must be heard
•who must be listened to and respected
A child’s cultural heritage must be taken into consideration and respected, particularly in blended families.
Actions must be taken to ensure the child who is capable of forming his or her own views is able to express those views freely and safely about matters affecting them.
A child’s view must be given due weight in accordance with the age and maturity of the child.
A child should be at the forefront of all service-related decision-making.
According to their age or maturity, each child should be given the opportunity to participate directly or through a support person or representative before any decisions affecting them are made.
According to their age or maturity, each child should be engaged through an honest and respectful dialogue about how/why decisions were or will be made.
Everyone who provides services to children or services that affect children are child advocates. Advocacy may potentially be a child’s lifeline. It must occur from the point of first contact and on a continual/continuous basis thereafter.
The jury also made significant recommendations to effectively implement the Convention into law, asking that the Convention be incorporated into the purpose and interpretation sections of Ontario’s Child and Family Services Act, Education Act and the Children’s Law Reform Act. Specific sections are recommended for amendment to incorporate the child’s right under Article 12 to have their views considered in all matters affecting them. The jury also recommended that the K-12 school curriculum include education about the Convention, along with information about how to report child abuse.
If taken seriously, these recommendations are ground-breaking for children’s rights in Ontario and could be a model for law reform across the country. Here’s hoping that the terrible death that Katelynn suffered could lead to greater respect for children’s voices throughout the province and the country.
*Cheryl Milne was a witness called at the inquest to give evidence about the Convention on the Rights of the Child.
Posted on behalf of LeeAnn Chapman, CCRC board member and triage lawyer at The Hospital For Sick Children, Toronto
UN Convention of the Rights of the Child, Article 12
In an ideal world no child would ever suffer from a terminal disease. They would not endure intractable pain, nor face the indignity of losing control over one’s own body and mind; nor would their parents have to watch their child suffer, knowing death was inevitable.
Despite advances in health care, in particular palliative care and pain management, there are cases where suffering cannot be alleviated. Further, physical suffering alone is not the sole motive of those who seek an end to life. Loss of dignity and autonomy as one’s body succumbs to disease and injury, are most often stated as reasons alongside intractable pain, to control how and when the end comes. Losing control over bodily functions, the inability to communicate, and having to rely on family members and others for the most basic tasks of existing, all contribute to the underlying desire for physician-assisted death.
In 2015 the Supreme Court of Canada held that a law which prohibits a person from pursuing physician-assisted death “interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people …. to endure intolerable suffering, it impinges on their security of the person”(Carter v Canada, 2015).
As the Government of Canada responds to the Supreme Court of Canada’s decision in Carter v. Canada with new legislation, the question remains: Will the new law respect the rights of competent children and youth; or will the law deny them equal access to make decisions concerning their bodily integrity, such that they alone will be left to “endure intolerable suffering” when death is a certitude, without the right to seek physician-assisted dying? Such a decision would not only be cruel and unfair, but also in violation of Article 12 of the UN Convention on the Rights of the Child, as well as inconsistent with Canadian common law and the majority of provincial laws, which grant the right to make one’s own medical decisions based on capacity, not an arbitrary age maker.
In A.C. v. Manitoba (Director of Child and Family Services), a majority of the Supreme Court held that “The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views….” “ If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected (para. 87).”
Thus Canadian children and youth based on their capacity, not age, can request the removal of life-sustaining medical equipment such as ventilators, refuse artificial nutrition and hydration, and refuse life -saving treatments such as dialysis or chemotherapy even though that treatment may prolong their life. It is incoherent and unethical to acknowledge the right of capable children and youth to consent to end medical treatment which might result in their own death; but not extend to them the same right as adults, to assistance in ending their suffering from a “grievous and irredeemable dying”.
To deny the rights based on age alone is an unacceptable denial of equality according to the majority of Toronto high school students who attended a workshop on physician assisted- death in 2015 (Chapman, 2015). When asked to fill in a questionnaire on whether physician-assisted death should be available to competent adults only, or adults as well as youth, of those who supported the concept of physician-assisted death, 77.7% believed that it should be available to capable youth.
Furthermore, what about the right of children without capacity to hasten an end to intolerable suffering? In a study among parents whose children died of cancer 19% considered requesting a hastened death. One father of a five-year-old boy who died of cancer requested of his physician that if the child’s soft-tissue tumor ever threatened to choke his son to a “horrible, horrible” death, “Can we just get it over with quickly?” With laws that did not support such a request, not only did the father endure the loss of his child, but was denied the solace of knowing there was a possible exit if the suffering became intolerable (Dussel, et al, 2010). Canadian law as well as the UN Convention on the Rights of the Child, Article 3, requires that all decisions made for children must be in their best interests. Can one reasonably argue that it will never be in the best interest of a young child not to have the benefit of physician assistance to end prolonged suffering when the medical condition is terminal?
As in all discussions concerning physician assisted death, there are legitimate concerns about protecting the vulnerable, those who do not have capacity, and those who do not have the ability to express their wishes. The concerns about vulnerable populations is not age dependent, nor should concerns about adequate safeguards (as the Supreme Court has noted) justify denying the most basic rights to the citizens of a country, the right of bodily integrity and security of the person as it applies to ending an unwanted life, dominated by intolerable and hopeless suffering. It is important that the Supreme Court’s ruling that the suffering must be “grievous and irremediable” is respected and that all avenues of pain alleviation are offered, and that only those in a hopeless medical situation are offered assistance in dying as a relief from suffering. However, that desired relief should not be denied on the basis of age alone.
While the state has a legitimate interest in protecting those who are vulnerable, choosing an arbitrary age upon which to grant the right to assistance in ending the intolerable suffering of a prolonged dying, cannot stand up to scrutiny under the Charter or the UN Convention on the Rights of the Child.
CHRT rules in favour of First Nations Children’s Caring Society in discrimination complaint
Posted on behalf of Christian Whalen, Board Member
On Tuesday February 26 the Canadian Human Rights Tribunal released its long awaited decision in relation to the race and ancestry discrimination complaint against Canada filed in 2007 by the First Nations Child and Family Caring Society and the Assembly of First Nations. The complaint alleged that the federal government’s funding formula for child family services to First Nations children on reserve was inadequate to meet their needs and is discriminatory.
The federal government’s policy over decades has been to fund Child and Family Service Agencies on reserve on the basis of provincial spending in relation to children off reserves in the province or territory where the band agency is situated. This formula does not allow for adequate consideration of the needs of children on reserve and within their communities.
The Tribunal held that funding alone can be a service within the meaning of section 5 of the Canadian Human Rights Act but that the department of Aboriginal Affairs and Northern Development Canada is involved in the provision of child and family services to First Nations children on reserve. It held further that First Nations are adversely impacted and in some cases denied services by AANDC, and that race and/or ethnic or national origin are factors in that adverse impact or denial.
The Tribunal held that not only were these adverse effects substantiated but that they “perpetuate historical disadvantages suffered by Aboriginal people’s, mainly as a result of the Residential Schools system”. The Tribunal members took the further step of acknowledging the harm occasioned: “The Panel acknowledges the suffering of those First Nations children or families who are or have been denied an equitable opportunity to remain together or to be reunited in a timely manner. We also recognize those First Nations children and families who are or have been adversely impacted by the government of Canada’s past and current child welfare practices on reserves.”
The Tribunal granted the declaratory relief sought by the complainants and reserved its decision on other remedies pending further submissions from the parties.
The decision is also of interest to child rights specialists given the Tribunal’s reliance on international law standards and obligations in reaching its conclusion. The Tribunal referenced the provisions of the UNCRC, it cited Canada’s Statement of Understanding in relation to the rights of First Nations children, it recalled the Child Rights Committee’s Concluding observations to Canada in response to Canada’s Third and Fourth reports and held that “Canada’s statements and commitments, whether expressed on the international scene or at the national level, should not be allowed to remain empty rhetoric.”
The full decision is available here: http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/127700/1/document.do
The Globe and Mail reported today that the Liberals plan to honour all recommendations of the Truth and Reconciliation Commission including the recommendation to repeal s.43 of the Criminal Code. This section provides a defence to parents and teachers who use force against children for the purpose of correction. It is referred to as the corporal punishment (or spanking) defence. The UN Committee on the Rights of the Child has recommended numerous times to Canada that it should get rid of this defence and ensure that children are protected in all places including their homes and schools from physical violence (Art. 19). As one of the lawyers who argued the constitutional challenge to this provision all the way to the Supreme Court, only to have the Court find that the provision neither discriminated against children nor breached their rights under section 7 of the Charter, I am heartened by this firm commitment from the government. The case is now over 12 years old and while the evidence was compelling back then that physical punishment of children caused them harm, the evidence is even more convincing now. As of this past week 48 states worldwide, with the recent addition of Peru, have prohibited the use of corporal punishment of children. You can read more about those changes at the Global Initiative to End Corporal Punishment of Children website. Regardless of whether the social science backs the repeal, it is clear that we need to respect children and acknowledge the harms that such practices can cause. It is one of the sorry legacies of the residential schools system and a practice that can no longer be supported in law for any child. I am delighted by this news for children!
Cheryl Milne, Chair of the Board
We have modified the awards categories for this year and extended the deadline for submitting letters of nomination for our child rights awards to October 15, 2014. Details about the awards can be found on our Awards page with descriptions of our past recipients. Nominate a person or group that you think is deserving of recognition for their work to promote the rights of children.