Ontario Human Rights Commission
Bill 89, Supporting Children, Youth and Families Act, 2017
April 3 2017
The Ontario Human Rights Commission (OHRC) welcomes the introduction of Bill 89, Supporting Children, Youth and Families Act, 2017. The Bill responds to human rights concerns raised by the OHRC about various aspects of Ontario’s child welfare system, including the overrepresentation of Indigenous and racialized children and youth in Ontario’s child welfare system.
The OHRC makes this submission in keeping with its mandate to review and comment on government legislation, policies and programs, in accordance with section 29 (d) of the Human Rights Code (Code). Section 1 of the Code prohibits discrimination in services, which includes services to children, youth and their families, based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
The OHRC has also reviewed the submissions and recommendations of the Office of the Provincial Advocate for Children and Youth (OPACY) and are generally supportive of them.
- The OHRC recommends amending the Bill to make data collection and public reporting a legislative requirement rather than leaving it to the discretion of the Minister. The Bill should also require that data collection and public reporting include information about any populations that are overrepresented in care, including Indigenous and African Canadian children and youth.
The OHRC is supportive of new provisions in the Bill that provide for data collection, analysis and public reporting, as well as safeguards related to consent, confidentiality, and privacy. The OHRC believes that the collection and sharing of personal information (such as race, ethnic origin and other grounds) to plan for and provide services is essential for creating successful outcomes for children and families, and we support new language in the “Purpose” section of the Bill that recognizes this fact. However, we recommend that Bill 89 compel, rather than simply permit, the Minister to require the collection, use and disclosure of this type of information.
The OHRC also supports related recommendations of OPACY. The OHRC agrees that data must be disaggregated to measure gaps in outcomes experienced by, for example, Indigenous and African Canadian children and youth. We support OPACY’s recommendations that the government set targets, track progress, and publicly report on such disparities.
The OHRC supports OPACY’s proposed amendment to require the Minister to request information from service providers and lead agencies where the Minister finds that certain populations of children and young people are overrepresented, and require that such information be made public.
Solitary confinement and oversight
- The OHRC recommends that the Bill generally prohibit solitary confinement of children and youth.
Solitary confinement should never be used as punishment for children or youth. Solitary confinement should never be used for any children or youth with mental health disabilities, absent undue hardship. It is critical that meaningful alternatives to solitary confinement be developed and implemented, consistent with the best interests of a child, least restraint practices and the duty to accommodate Code-related needs to the point of undue hardship.
If the legislation permits the use of solitary confinement for children and youth, it must be subject to strict time limits, as well as independent and external review and oversight, including judicial review.
Data collection and public reporting must include information about any use of solitary confinement and its effects on Code-protected children and youth.
- The OHRC recommends that the term “creed” remain undefined.
The OHRC supports replacement of the term “religion” with “creed”, as one of several factors to be considered about a child or young person. Creed is the term used in the Code. The OHRC’s Policy on preventing discrimination based on creed, and related case law, recognize that creed includes religious beliefs and practices, as well as non-religious belief systems that substantially influence a person’s identity, worldview and way of life.
Recognizing cultural identity and connection to community
- The OHRC recommends that section 63(5) require consideration of the child or youth’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, creed, sex, sexual orientation, gender identity, gender expression and cultural and linguistic heritage when conducting a residential placement review.
- The OHRC recommends that the requirement in section 314 for a periodic review of the Act mandate review of whether the stated purposes in section 1 are being met, including that services be provided in a manner that takes into account the child or youth’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression.
- The OHRC also recommends that the requirement for legislative review include analysis of information obtained through identity-based data collection.
 The OHRC responds to the Truth and Reconciliation Commission’s call for action on Indigenous children in the child welfare system, 2015, online: http://www.ohrc.on.ca/en/news_centre/ohrc-responds-truth-and-reconciliation-commission%E2%80%99s-call-action-indigenous-children-child-welfare. Also see, letter to Children’s Aid Societies in Ontario re: Request for disaggregated data regarding children and youth in Ontario’s child welfare system, 2016, online: http://www.ohrc.on.ca/en/news_centre/children%E2%80%99s-aid-societies-ontario-re-request-disaggregated-data-regarding-children-and-youth-ontario.
 The OHRC uses the term “solitary confinement” to refer broadly to the practice of physical and social isolation, which may also be referred to as “segregation”, “secure isolation” or “secure de-escalation”. The OHRC has called for the end of solitary confinement in other contexts as well. See, for example, Submission of the OHRC to the Ministry of Community Safety and Correctional Services’ Provincial Segregation Review, January 2016, unpublished. Also see Supplementary Submission of the OHRC to the MCSCS Provincial Segregation Review, October 2016, online: www.ohrc.on.ca/en/supplementary-submission-ohrc-mcscs-provincial-segregation-review. Also see, Abolish solitary confinement for Ontario’s children and youth, Toronto Star, January 5, 2017, online: www.thestar.com/opinion/commentary/2017/01/05/abolish-solitary-confinement-for-ontarios-children-and-youth.html.
 The Committee on the Rights of the Child said in its General Comment No. 10 (2007) that “disciplinary measures in violation of article 37 [of the Convention on the Rights of the Child] must be strictly forbidden, including ...closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned” (CRC/C/GC/10, para. 89).
 See the OHRC’s Policy, online: www.ohrc.on.ca/en/policy-preventing-discrimination-based-creed.