Rights of the Child (6:VI)

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A. School

1. Compulsory Attendance and Registration

The School Act, RSBC 1996, c 412 states that all children must be enrolled by the first school day of a school year if, on or before December 31 of that school year, the child will have reached the age of 5 years (s 3(1)(a)). Parents may, however, defer enrolment until the first school day of the next school year (i.e. until age 6) (s 3(2)). Once enrolled, children must remain in an educational program until they are 16 (s 3(1)(b)). Whether children attend public or private schools, they must be registered on or before September 30 in each year either with a school or with the Minister (s 13). Students must also comply with the rules, code of conduct, and policies set by the Board or school (s 6).

Under s 12 of the School Act, parents are authorized to educate their children at home or elsewhere provided they register their children pursuant to s 13.

2. Discipline

The Criminal Code (s 43) allows a school teacher to use discipline that is reasonable in the circumstances. This section refers to the use of The Criminal Code (s 43) allows a schoolteacher to use discipline that is reasonable in the circumstances. This section refers to the use of reasonable force. The definition of reasonable force is “the substantial social consensus on what is reasonable correction supported by comprehensive and consistent expert evidence on what is reasonable”. Please see Canadian Foundation for Children, Youth and the Law v Canada, 2004 SCC 4. However, the School Act specifically states that discipline of a student must be similar to that of a kind, firm, and judicious parent, but must not include corporal punishment (s 76(3)).

3. Rights of Parents and Students

Students and parents have the right to consult with a teacher or administrative officer (School Act, ss 4 and 7(2)). As well as having the right to information regarding the attendance, behaviour and progress of their children in school (s 7(1)(a)), parents may request an annual report on the general effectiveness of the program their children are enrolled in, without their children’s consent. They are also entitled to belong to a parent’s advisory council (s 7(1)(c)). The councils can be formed by application to the Board or Minister of Education, and can advise the Board and staff of the school (s 8).

4.School Records

Individual students and their parents are entitled to examine, on request, all records pertaining to that student while accompanied by the principal or a person designated by the principal (School Act, s 9). Student records identifying the student will not be released to other parties except when required by law, or if the student or parent consents to the disclosure in writing.

5. Language of Instruction

Every student in B.C. is entitled to instruction in English (School Act, s 5). However, under the Canadian Charter of Rights and Freedoms, students whose parents are citizens of Canada have the right to receive primary and secondary school instruction in either English or French if:

  • their parents’ first language is that of the English or French linguistic minority population of the province in which they reside, and they still understand that language; or
  • their parents received their primary school instruction in Canada in English or French and the parent resides in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province.

6. Other Concerns

The School Act states that public schools must be conducted on strictly secular and non-sectarian principles (s 76(1)).

Moore v British Columbia (Education), 2012 SCC 61 at para 36 determined that BC had discriminated against a dyslexic boy when it cut the special needs program during a financial crisis. The SCC found that he was denied a service customarily available to the public. The service denied was not access to a special needs program, but meaningful access to education generally. Discrimination was found because the cuts disproportionately affected special needs programs and there was no evidence that BC considered other options.

Parents are jointly and severally liable for intentional or negligent damage to school property caused by their children (s 10). There is no action against a Board or its employees unless the actionable conduct included dishonesty, gross negligence, malicious or wilful misconduct, or the cause of action is libel or slander (s 94(2)). Section 94 does not absolve a Board from vicarious liability.

Any person who believes a child, whether registered or not, is not receiving an educational program can make a report to the superintendent of schools (s 14(1)). An action lies against that person only if the report is made maliciously (s 14(3)).

School boards have a duty to provide an educational environment that is free from discriminatory harassment. This rule was affirmed by the Supreme Court of Canada on October 20, 2005, when it upheld a BC Human Rights Tribunal finding of discrimination against a BC school board in the homophobic harassment of one of its students: see Board of School Trustees of School District No 44 (North Vancouver) v Azmi Jubran, et al [2005] SCCA No. 260 at para 91-102 (with costs and without reasons). Note that while the student was found to have been discriminated against on the basis of sexual orientation, it was irrelevant whether he identified himself as homosexual, or whether his harassers knew or believed him to be homosexual.

B. Medical Attention

1. Obligation to Provide Treatment

The Criminal Code (s 215) imposes criminal sanctions on parents who fail to provide their children with the necessaries of life until they reach the age of 16. This has been held to include adequate medical treatment, and a court may also extend the duty to an older child who cannot become independent of their parent(s) due to factors including age and illness. Section 218 of the Criminal Code imposes criminal sanctions on any person who abandons or exposes a child less than 10 years of age to the risk of permanent injury, damage to his or her health, or risk to his or her life.

Under the Child Family and Community Service Act, children under the age of 19 may be removed if they are deprived of necessary medical attention, but only by a court order (s 29). Where a child is removed, emergency medical care can be given at the Director’s authorization (s 32). In cases where the only issue is the parents’ refusal of necessary medical attention, the Director can apply for a court order authorizing the medical care without removing the child from the parents’ custody (s 29).

2. Consent to Treatment

In Canadian case law, the courts have found that a minor can consent to treatment as a “mature minor” if that particular person has the mental capacity to understand the nature and risks of that particular treatment (see also Infants Act, s 17). A minor, who is living away from home, working, or married, may be found to be autonomous, and free from parental control, and thus capable of consenting to or refusing treatment on his or her own behalf.

Under the Infants Act, (s 17), a minor can consent to surgical, medical, mental, or dental treatment without the agreement of their parents, so long as the health care provider has: i) explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care; and ii) has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests. This includes requests for birth control advice and products, and for abortions.

A court of competent jurisdiction may order medical treatment for any child if the court is satisfied that such treatment is required, and that parental consent is being unreasonably withheld. This is part of the inherent parents patriae (guardian of persons under a legal disability) jurisdiction of the Supreme Court, and is now codified under s 29 of the CFCSA.

© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.

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