Analyzing Ontario’s Bill 89

17 Jan 2017 Analyzing Ontario’s Bill 89

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On the feature today, an interview with ARPA Canada lawyer John Sikkema, about a new Ontario law governing child welfare, foster care, and adoptive services. Click here to read the transcript of the interview.

In the news:

We Need a Law’s Stop Censorship tour on Ontario’s FIPPA law that censors abortion statistics has wrapped up. Click here to hear insight from Director Mike Schouten.

Religious Neutrality: Quebec tries to ban religious instruction in day care centres, even Christian ones! Click here for more from Christian Legal Fellowship’s Derek Ross.

The US Supreme Court: President-elect Donald Trump has promised to name his Supreme Court appointment by the end of the month. Click here for more on what’s happening south of the border.

ONTARIO “STOP CENSORSHIP” TOUR CONCLUDES

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We Need a Law has just wrapped up a 9-city tour of Ontario; the final event in the Stop Censorship tour was held last night in Windsor. The tour was designed to draw attention to the way the Ontario government is actively hiding abortion statistics in order to frustrate the ongoing work of helping women and advancing pre-born human rights. Each stop on the tour featured two presentations on the issue: one from We Need a Law Director Mike Schouten, and the other from ARPA lawyer John Sikkema.

Schouten says there were some surprises on the tour. “Most people,” he says, “are not aware” of the censorship. “The other demographic that’s not aware this is going on is politicians themselves. At one event, we had two persons running for the candidacy of the PC Party in Ontario, and they had no idea this was going on.”

Schouten says the tour also gave We Need a Law some exposure to new audiences. “We organized these events through local right-to-life groups – whether that be Halton Alive or Hamilton Right to Life.” He says many people at the various events had not really heard of the work of ARPA Canada or We Need a Law, so the tour provided an opportunity to create new relationships, and “grow the grassroots” in Ontario.

QUEBEC TRIES TO IMPOSE “RELIGIOUS NEUTRALITY” ON DAY CARE CENTRES

Derek Ross, executive director of the Christian Legal Fellowship
Derek Ross, executive director of the Christian Legal Fellowship

The provincial government in Quebec has introduced a new law governing religious expression in the province. Bill 62 is called the “Religious Neutrality Act”. Among other things, it tries to ban religious instruction of any kind in private day care centres, be they Christian, Muslim or Jewish.

The Christian Legal Fellowship has written a brief to the National Assembly, objecting to the central tenet of the bill. Executive Director Derek Ross says the concept of “state neutrality” seems to be misunderstood in the legislation. “The Supreme Court of Canada has said that the State’s duty to remain neutral in matters of religion means that it must neither favour nor hinder any particular belief, and it’s that latter part that we feel is missing in this particular legislation.”

Ross says the bill is completely inconsistent with the Loyola court ruling, which upheld the right of a Catholic school to teach ethics from an explicitly Catholic perspective. “The bill says that subsidized educational child care services – and we understand that to include subsidized faith-based child care, home-based child care programs – they must not teach children a specific religious belief, dogma, or practice. So this bill is effectively imposing a requirement of non-belief on faith-based child care centres, which in our view is contrary to the Charter and contrary to what the Supreme Court (decided) in the Loyola decision.”

There’s a link to the full CLF brief to the Quebec National Assembly here.

TRUMP POISED TO MAKE FIRST SUPREME COURT NOMINATION

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A lot of Canadians will be watching with interest when Donald Trump gets sworn in as the 45th president of the United States on Friday. One of the issues that Canadian Christians will be watching is what he does with the United States Supreme Court. There’s a vacancy on the Court right now, caused by the death last year of Justice Antonin Scalia. Trump talked about filling that vacancy last week, at his first formal press conference since the election. He said his nominee would likely be named before the end of this month, from a list of 20 potential nominees. “We’ve met with numerous candidates,” Trump said. “They were largely recommended, and highly recommended by the Federalist Society.”

Trump also told reporters he’s very aware that Americans have been frustrated with some recent Supreme Court decisions. “I think the people of this country did not want to see what was happening with the Supreme Court, so I think it was a very, very big decision as to why I was elected.”

As to the “Federalist Society”, a group with which the President-elect has been consulting in his search for a new Justice, that group describes itself, on its website, as “a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

FEATURE TRANSCRIPT

ARPA Canada lawyer, John Sikkema
ARPA Canada lawyer, John Sikkema

The feature this week, an analysis of Bill 89, Ontario’s new Supporting Children, Youth and Families Act. The Act – which governs things such as child welfare, foster care, and adoptive services – was introduced just before Christmas, and since then, ARPA lawyer John Sikkema has had an opportunity to spend some time looking at the details of the bill.

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LN: John, talk to me first of all about what the bill is, and how it regulates these things.

JS: Bill 89 will repeal the Child and Family Services Act completely and then replace it. And that is the legislation that governs Child Protection Services, Foster Care Services, adoption services, who’s licensed to provide adoption services, and all of that. Since it replaces the whole Act, it’s a pretty long bill. Some of what it does is just change language here or there. For example, the term that a child is a “ward of the State” when the child goes into State care – that term is removed. Instead, children are just “in the care of the State.” That’s the softer language used. When referring to aboriginal children it removes terms like “Indian” and replaces it with more proper terms like “Metis” or the appropriate terms there. So some of that is less concerning.

(But there are) more substantive changes to how we interpret the “best interests of the children” which is kind of the governing purpose of the whole Act.

LN: There are some problems with this bill. Outline some of those for us. What are the issues that you see that need to be addressed here?

JS: We’ve got a few things here. One thing is that the bill adds “gender identity” and “gender expression” to what’s considered “in the best interests of the child.” So that’s something that may be operative in the system already – that Children’s Aid Societies are concerned about – but this is putting it right into the law; that in all these services, a child’s gender identity and gender expression needs to be accounted for in how services are provided. So that’s one thing. Another is that the bill actually removes the religious faith a child is being raised in as a matter that’s to be considered. That used to be a stand-alone matter that a child’s religious faith should be accounted for in how services are provided. That’s cut, and then we just have “creed” in the whole long list of things that include “race” and “gender identity” and “gender expression”.

LN: There’s also some implications for parental rights in terms of that the Children’s Aid Society can do?

JS: Yes. One thing that Bill 89 does, it signals a shift towards a greater readiness for Children’s Aid Societies to intervene. So the current law says, with regard to Children’s Aid Societies, that they should always take the “least disruptive course of action” that’s available to them. What Bill 89 does is it adds something to that. So it keeps the “least disruptive court of action” phrase, but then adds “including the provision of prevention services.” And you know, we never have language added for no reason. The courts will always see a purpose in the Legislature adding language, and this, to me, implies that Children’s Aid Society intervention should not be presumed to be more disruptive than non-intervention. And intervention is (considered) necessary for a number of reasons in this law. A child may be in need of protection – Children’s Aid Society intervention – if the child is suffering mental or emotional harm, or is at risk of mental or emotional harm, and if parents are not providing treatment or access to proper treatment for a child who’s considered to be suffering from that kind of emotional harm. Then Children’s Aid Societies are supposed to investigate and possibly intervene.

And so you can imagine a situation where, say, a child’s teacher suspects that a child is gender questioning or something and they’re not being supported in that. The teacher (would) actually have a duty to report certain things to a Children’s Aid Society who would look into it further. So these things (taken together with some of the things that are added like gender identity) kind of signal that intervening may not be considered more disruptive than not intervening. We may be seeing a shift towards essentially enforcing gender ideology in families.

LN: There’s some other problems as well in terms of who can and can’t foster and adopt. Talk to me about that.

JS: Just the fact that this bill adds gender identity/gender expression into the mix of things that have to be taken into account. It could mean that parents who don’t affirm that line of thinking – that gender varies independent of sex – that placing a child with such parents would  be considered not to be in the child’s best interests. And not just for gender-questioning children. In the eyes of the law, of course, every child would have a “gender identity” that may be considered “cis-gender” – the term if the child is a boy who identifies as a boy – but in the eyes of the law, gender identity is a real thing. Now how exactly that would play out is difficult to know. The law does say that the Minister accountable for this bill can pass regulations – those don’t have to be voted on in the Legislature – can have regulations that will govern how gender identity and gender expression are to be accounted for. So the practical details will be worked out in regulation that the Minister can adopt.

LN: What are the political realities surrounding this? Patrick Brown essentially prevented any of his caucus members who were opposed to Bill 28 from showing up for that vote. Is there any indication we’re going to be faced with a similar situation on this one, or is it too early to tell?

JS: I think it is a bit early to tell. One of the nice things here is, unlike with Bill 28, we have a bit more time. This was introduced in December, just before the Legislature took a break, and they won’t be back in session until late February. So that gives a bit of time to contact MPPs, find out what their positions are, and hopefully tease out a sense of where the other parties would go on this. It is a government bill, and the government of course has a majority, so it does seem likely to pass. But we hope to find out soon what the reaction to this bill will be from our elected representatives.

LN: So we know in terms of process, will there be Committee hearings, for example, or is this going to be rushed through the way Bill 28 was?

JS: That’s also difficult to know. A committee will review the bill. Whether or not they actually have witnesses appear before that committee is another question that will depend on what the committee decides to do.

LN: ARPA’s got some EasyMails on this. Talk to me a little bit about the basics of what we’re trying to say in that campaign.

JS: For now, we’re just inviting people to check out our EasyMail and send one, or all, and to follow up for a response if they don’t get one.

One of those EasyMail messages talks about how Bill 89 undermines parental authority, which we’ve talked about a little bit.

Another one talks about how Bill 89 jeopardizes foster and adoptive families and children. I mean, a lot of religious families provide foster services, and adoptions as well. We essentially want to ask the government if they’re trying to stop those families from being involved in this. You know, that’s not good for the families, and it’s not good for the children who need foster services, and some of them who need adoptive homes.

And finally we have a message that talks more specifically about how Bill 89 treats religion. It seems to see a child’s religious upbringing as less important while adding a whole list of factors that you might find in a human rights bill, including gender ideology, and whether or not that’s appropriate in the Child Services context.

So those are kind of the three drafts that we’ve got up there for people to edit as they like – as always – and send as soon as possible so that we’ve got time to get responses from our MPPs before this returns to the Legislature.

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