Time for the Opposition to do its job on Bill 89



March 7, 2017

John Diefenbaker

One talking point we’ve heard regarding the Liberal government’s Bill 89 – from the Opposition – is that it’s hard to oppose a bill that is all about protecting children.

But the Opposition’s job is not to use the good in government bills as an excuse for failing to scrutinize and oppose the bad parts. The Opposition’s job is to oppose. Constructively, yes, but oppose nonetheless. As John Diefenbaker, our 13th Prime Minister, said,

      If Parliament is to be preserved as a living institution, his Majesty’s Loyal Opposition must fearlessly perform its functions. When it properly discharges them, the preservation of our freedom is assured. The reading of history proves that freedom always dies when criticism ends. […] [The Opposition] finds fault; it suggests amendments; it asks questions and elicits information; it arouses, educates and moulds public opinion by voice and vote.

Bill 89 is 270 pages. It would be a great feat indeed if there were nothing good in it at all. But Ontario needs the Official Opposition to question what the government claims is good about the bill and to find out and expose what is bad.

Yet on recent, major pieces of social legislation – like Bill 77 (2015) banning “reparative therapy” and Bill 28 (2016) redefining parentage – the Opposition did not do its job. It did not engage in serious questioning. And not a single member voted against either bill.

Ontario’s left-wing social agenda is garnering international attention. For example, an Australian Professor of Paediatrics was surprised to find out how little Cheri Dinovo, sponsor of Bill 77, knew about treatment and outcomes for children with gender dysphoria, even after the bill passed. How was she never confronted with the facts?

Nor, so far, has the Opposition done its job on Bill 89. Hopefully that will change before the bill passes, but time is running out. So let’s begin to do what the Opposition is supposed to do, starting with examining the claim that Bill 89 is all about protecting children.

Bill 89 and the murder of Katelynn Sampson

Bill 89 is supposedly the government’s response to the tragic death of Katelynn Sampson and the subsequent Coroner’s Jury inquiry and recommendations. Katelynn was murdered eight years ago by her caregivers. She was seven years old. The Children’s Aid Society (CAS) of Toronto had been repeatedly alerted to signs that Katelynn was being abused, but no decisive action was taken to protect her.

The CAS only realized that they had files on Katelynn’s caregivers after Katelynn died. Those files showed that her caregivers had been reported for crimes. The CBC reports:

      The agency convened senior managers to examine what services it had provided to the girl and her family and to “really make sense of this terrible tragedy that had befallen this child,” [Children’s Aid Society director] Nancy Dale said.

      They quickly discovered that some information had been lost in the transfer of information between CAS and its sister agencies, she said. That prompted the agency to scrutinize its practices and eventually overhaul its referral and information-sharing practices, Dale said.

       Among the changes that followed Katelynn’s death was the creation of a uniform referral system shared by Toronto’s four child welfare agencies, which also tracks whether the information has been received, she said.

The tragedy prompted Children’s Aid Society of Toronto to conduct an internal review and to change its practices. The Coroner’s Jury also investigated Katelynn’s case and, in 2015, released its Verdict.

The Coroner’s Jury Verdict contains 173 recommendations to the Ontario government for avoiding tragedies like Katelynn’s in the future. The report did not recommend an overhaul of the Child and Family Services Act. Nor does it recommend adding gender identity or expression (or the rest of the Human Rights Code list of identifiers) to the factors to be considered when determining the best interests of a child.

Rather, the Coroner’s Jury recommended that the Ministry of Children and Youth Services:

  • review and consider raising the financial penalties in the Act where a professional with knowledge of child abuse fails to report and extend the penalty to the professional’s employer when the individual was acting in their (official or employment) capacity and failed to report (Recommendation 5);
  • consider revising the Act to include penalties for non- professionals who have knowledge of child abuse and fail to exercise their “Duty to Report” as citizens (Recommendation 7);
  • amend the Act to incorporate the United Nations Convention on the Rights of the Child (Recommendation 9); and
  • expand the circumstances in which the Child Abuse Register can be checked to include non-parental custody applications, by amending the Child and Family Services Act as well as updating the 1987 Interim Guidelines for Reporting to the Register (Recommendation 54).

That’s it for changes to the CFSA. Only 4 out of 173 recommendations have anything to do with amending this Act – and Bill 89 implements none of them. Yet we are being told that Bill 89 must be supported in order to protect children.

Katelynn’s Principle

One thing Bill 89 would do that reflects the Coroner’s Jury Verdict is enact Katelynn’s Principle. The Coroner’s Jury articulated this principle in the introduction to its Verdict. Katelynn’s Principle puts children at the centre when they are the subject of or receiving services through the child welfare, justice, and education systems. Among other things, this principle means that the child’s views must be given due weight in accordance with the age and maturity of the child and that each child should be given the opportunity to participate before any decisions affecting them are made.

While the Coroner’s Jury did not specifically recommend that Katelynn’s Principle be enacted – rather, this Principle introduces and frames the recommendations that follow in its Verdict – there is no harm (and hopefully benefit) in doing so, as long as concrete, practical measures are not neglected. Even under current law, children have the right to “express their own views freely and safely about matters that affect them” and “to be consulted on the nature of the services provided or to be provided to them”, among other rights. The challenge is to ensure that these rights are respected in practice.

In any case, if Bill 89 is just about enacting Katelynn’s Principle, then it is unnecessary. Bill 57, “Katelynn’s Principle Act”, would do so anyway, and it has already passed second reading and was referred to the Standing Committee on November 24, 2016. 

Preferring general principles to concrete solutions?

Meanwhile, the Coroner’s Jury recommends several changes to the Children’s Law Reform Act and Regulations (Recommendations 68, 72, 73, 74, 75- 81), which have not been implemented despite the Liberal government’s recent overhaul of the CLRA with Bill 28. To take a simple example: the Coroner’s Jury recommended that Regulation 24/10 and Form 35.1 (under the Children’s Law Reform Act) be changed to require every adult residing in the home of a person seeking child custody to provide a criminal record check. This simple change has not been made, despite the fact that no legislative amendment is needed to implement it. (Bill 89 does authorize the Lieutenant Governor in Council to require (by regulation) police record checks for those who provide or receive services under the (yet-to-be-enacted) Child, Youth and Family Services Act or those residing, employed or volunteering in premises where services are provided under that Act, though it does not make police record checks a requirement.)

So far we’ve only mentioned 15 out of 173 recommendations – namely those that have to do with amending the Child and Family Services Act or the Children’s Law Reform Act and their regulations. What about the remaining 158 recommendations?

The remaining recommendations are actions that the government can take (without amending legislation) to ensure that children do not slip through the cracks of the child services system the way that Katelynn Sampson did. For example, the government could amend Ministry policies like the Child Protection Standards to require that a child see a doctor at the start of child protection investigation (42), that child protection files be reviewed to ensure all concerns have been addressed before the file is closed (43), and that children’s aid societies prepare written synopses of an individual’s involvement with CAS and their risk history (53). The government can improve its information management and sharing systems. The Verdict urges children’s aid societies to improve training, school boards to update their policies, and much more. There are recommendations for police, health care providers, and others. The relevant institutions answer to government Ministers. The government is responsible.

The Coroner’s Jury Verdict contains dozens of recommendations that have not been implemented. If the Opposition is looking for ways to hold the government to account and pressure it to better protect children in this province, this Verdict is a great resource. It is also a great resource for scrutinizing Bill 89.

The Auditor General’s 2015 Report

Another independent report calling for reform in this area was chapter 3 of the Auditor General of Ontario’s 2015 Report. Most of what has been said above with respect the Coroner’s Jury Verdict and Bill 89 could also be said of the Auditor General’s Report and Bill 89. Many of the problems identified by the Coroner’s Jury overlap with those identified by the Auditor General. Most can be addressed without new legislation. Bill 89 does little to resolve the problems identified by either the Coroner’s Jury or the Auditor General.

Ensuring that children are better protected from abuse while in the child services system is not an excuse for the Opposition to support Bill 89, but further reason to scrutinize it. For more reasons the bill requires scrutiny, read our earlier article here.

Tomorrow, we will tackle the claim that Bill 89 brings child and youth services law into better alignment with human rights law.

Bill 89: Child Services (Ontario), Ontario Email Us 

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