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Family - Child - Convention on the Rights of the Child (CRC). Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A [presumption of conformity]
In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A (SCC, 2024) the Supreme Court of Canada considers the interpretive principle that statutes are presumed to be in conformity with international treaties, here the Convention on the Rights of the Child ('CRC'):[26] Third, in the interpretation of any provision of the YPA, it is important to bear in mind the Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (“CRC”), which was ratified by Canada on December 13, 1991, and by which Quebec declared itself to be bound through an order in council (see Décret 1676‑91, (1992) 124 G.O. II, 51; YPA, preamble (ad. 2022, c. 11, s. 1)). In keeping with the presumption of conformity, the YPA must be interpreted in a manner consistent with Canada’s obligations under the CRC, insofar as the text allows. While the interpretive weight of this international instrument is undeniable, I note that the analysis must remain focused on the legislature’s intention and not on the obligational content of the treaty. It is imperative to interpret first and foremost “what the legislature (federally and provincially) has enacted” rather than subordinating the result of this exercise to what the federal executive has agreed to internationally or to the international treaties by which a provincial executive has declared its intention to be bound through an order in council. This is a matter of respect for the principle of separation of powers (Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 48; see also paras. 45‑47; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at para. 60; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 53‑54; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 103, per Martin J., concurring; P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at paras. 1301‑7).
[27] Finally, I note that, in the interpretation of a provision like s. 91 para. 4, which authorizes a statutory tribunal to exercise certain powers, the principle of separation of powers does not automatically limit the scope of the powers conferred on that tribunal by the legislature. Rather, the principle of separation of powers requires that full effect be given to the legislature’s intention as revealed by the interpretation of this enabling provision under the modern approach to interpretation. There is no rule whereby the legislature is presumed to intend to limit the powers it confers on a statutory tribunal on the basis of the magnitude of the budgetary impact of their exercise (see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 15 and 28). To the extent that the reasons of the majority of the Quebec Court of Appeal suggest otherwise, they are wrong in law.
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[61] Article 3 of the CRC makes it clear that the best interests of the child must be a primary consideration in “all actions concerning children” (Article 3(1)). Its aim is also for states parties to undertake “to ensure the child such protection and care as is necessary for his or her well‑being” (Article 3(2)). To this end, states must ensure that “the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision” (Article 3(3)).
[62] The CDPDJ is correct in stating that the CRC weighs in favour of interpreting s. 91 para. 4 in a large and liberal manner so that the tribunal will have all the corrective powers it needs to ensure that the child whose rights have been encroached upon has the fullest and most effective protection possible (see United Nations, Committee on the Rights of the Child, General Comment No. 5 (2003): General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), U.N. Doc. CRC/GC/2003/5, November 27, 2003, at para. 24; United Nations, Committee on the Rights of the Child, Concept Note: General Comment on Children’s Rights to Access to Justice and Effective Remedies, 2024 (online), at paras. 4‑7 and 16).
[63] That being said, it is undeniable that states parties to the CRC possess a margin of discretion in determining what measures are appropriate to promote the best interests of the child and to protect the child’s rights (see CRC, Article 4; J. Tobin, “Article 4. A State’s General Obligation of Implementation”, in J. Tobin, ed., The UN Convention on the Rights of the Child: A Commentary (2019), 108, at pp. 111‑12). I agree with the DYP that there is no indication that, in order to comply with the CRC, provincial and territorial legislatures must, in cases of encroachment upon rights, give courts or tribunals the mandate and powers they need to concern themselves with protecting the interests and rights of more than one child at a time (see R.F., at para. 39, quoting United Nations, Committee on the Rights of the Child, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), U.N. Doc. CRC/C/GC/14, May 29, 2013, at para. 32).
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