Difference between revisions of "Rights of the Child (6:VI)"

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{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = rights}}
{{LSLAP Manual TOC|expanded = rights}}
In addition to any claim under the federal or provincial codes, various protections exist for children under provincial statutes and the ''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]'', RSC 1985, c C-46, concerning educational and medical issues.


== A. School ==
== A. School ==


=== 1. Compulsory Attendance and Registration ==
=== 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).  
The ''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf 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 of Education (s 13). Students must also comply with the rules, code of conduct, and policies set by the Board of Education or by their particular 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.  
Under section 12 of the ''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf School Act]'', parents are authorized to educate their children at home or elsewhere provided they register their children pursuant to section 13.  


=== 2. Discipline ===
=== 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 reasonable force (see the definition given by the Supreme Court of Canada under Section XI.C, above). 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)).
Section 43 of the ''Criminal Code'' 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” (''[https://www.canlii.org/en/ca/scc/doc/2004/2004scc4/2004scc4.html Canadian Foundation for Children, Youth and the Law v Canada]'', 2004 SCC 4 at para 2). However, the ''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf School Act]'' specifically states that discipline of a student must be similar to that of a kind, firm, and judicious parent, and must not include corporal (physical) punishment (s 76(3)).


=== 3. Rights of Parents and Students ===
=== 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).
Students and parents have the right to consult with a teacher or administrative officer (''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf 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 ===
=== 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.
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 (''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf 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 ===
=== 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:  
Every student in BC is entitled to instruction in English (''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf School Act]'', s 5). However, under section 23 of the ''[https://laws-lois.justice.gc.ca/eng/const/page-15.html 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’ first language is that of the English or French-speaking minority population of the province in which they reside, and their parents 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.
*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-speaking minority population of the province.


=== 6. Other Concerns ===
=== 6. Other Concerns ===


The ''School Act'' states that public schools must be conducted on strictly secular and non-sectarian principles (s 76(1)).  
The ''[https://www2.gov.bc.ca/assets/gov/education/administration/legislation-policy/legislation/schoollaw/revisedstatutescontents.pdf School Act]'' states that public schools must be conducted on strictly secular and non-sectarian principles (s 76(1)), meaning they cannot be religiously affiliated. For a case that applies s 76(1) please see [https://canlii.ca/t/jtfql Servatius v Alberni School District No. 70,] 2022 BCCA 421. In this case, a mother claimed that her children’s school had violated their religious freedom after an elder performed a smudging demonstration, and a hoop dancer said a prayer while performing at the children’s school assembly. The BC Court of Appeal ruled that the demonstrations were not religious ceremonies but public demonstrations for the purposes of building community and teaching students about Indigenous culture, practices recommended by Article 15 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
 
''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British  Columbia (Education)]'', 2012 SCC 61 at para 36 determined that the BC government had discriminated against a dyslexic boy when it cut the special needs program during a financial crisis. The Supreme Court of Canada found that he was denied a service customarily available to the public. The service denied was meaningful access to education generally, not specific access to a special needs program. Discrimination was found because the cuts disproportionately affected special needs programs and there was no evidence that the BC government considered other options.
 
Parents are jointly and severally liable for intentional or negligent damage to school property caused by their children (s 10 of the School Act). Please see [https://canlii.ca/t/gfv2m Nanaimo-Ladysmith School District No. 68 v. Dean] 2015 BCSC 11 for an example of parents being held liable for the negligent destruction of school property by their son. In this case, a 14-year-old student attached their friend’s padlock to the head of an overhead sprinkler in their school, which caused the entire sprinkler system to become activated, resulting in extensive damage to the school. Judgement was granted against the parents for $48,630.47 worth of damage. 
 
There is no action against a school 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)). Note section 94 limits liability, but does not absolve a board from vicarious liability.
 
Any person who believes a child, whether registered or not, is not enrolled in 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 dismissed an application for leave to appeal from a BC Human Rights Tribunal finding of discrimination against a BC school board relating to the homophobic harassment of one of its students (see ''[https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/item/12398/index.do North Vancouver School District No 44 v Jubran]'', [2005] SCCA No 260 and [https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca201/2005bcca201.html North Vancouver School District No 44 v Jubran], 2005 BCCA 201 at paras 91–102). 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.
 
The Ministry of Education has developed the Sexual Orientation and Gender Identity (SOGI) 123 initiative, to guide educators on instruction about sexual orientation and gender identity. The aim of this initiative is to foster inclusion and respect for students who, because of their identity or expression, may face discrimination while attending school. In [https://canlii.ca/t/jx8k0 Hansman v. Neufeld,] 2023 SCC 14, the Supreme Court of Canada addressed the conflict between freedom of expression and the protection of one’s reputation in the context of a critique of SOGI. In this case, Mr. Neufeld, a public school board trustee, made controversial online posts criticizing SOGI. Mr. Hansman, a gay man and teacher, was prominent amongst the dissenting voices and made statements to the media regarding his opposition to Mr. Neufeld’s views. Mr. Neufeld subsequently filed a defamation suit against Mr. Hansman. The SCC ruled in favour of Mr. Hansman, writing that “Not only does protecting Mr. Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value” (para 9). In this case, the SCC acknowledged that transgender and other 2SLGBTQ+ youth are especially vulnerable to expression like Mr. Neufeld’s that reduces their “worth and dignity in the eyes of society and questions their very identity” (para 9).
 
== B. Medical Attention ==
 
=== 1. Obligation to Provide Treatment ===
 
The ''[https://laws-lois.justice.gc.ca/eng/acts/c-46/index.html 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 ''[https://laws-lois.justice.gc.ca/eng/acts/c-46/index.html 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 their health, or risk to their life.
 
Under the ''[https://www.bclaws.gov.bc.ca/civix/document/id/consol21/consol21/00_96046_01 Child Family and Community Service Act]'', RSBC 1996, c 46 (CFCSA), 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). When 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 the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 Infants Act]'', RSBC 1996, c 223, 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 their own behalf.
 
Under the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 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:
 
#Explained to the minor and has been satisfied that the minor understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care; and
#Has made reasonable efforts to determine and has concluded that the health care is in the minor'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 ''parens patriae'' (guardian of persons under a legal disability) jurisdiction of the Supreme Court and is now codified under section 29 of the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96046_01 CFCSA].
 


''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 A ttention 1.Obligation to Provide TreatmentThe 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  CFCSA,  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).
{{LSLAP Manual Navbox|type=chapters1-7}}

Latest revision as of 21:37, 5 September 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.



In addition to any claim under the federal or provincial codes, various protections exist for children under provincial statutes and the Criminal Code, RSC 1985, c C-46, concerning educational and medical issues.

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 of Education (s 13). Students must also comply with the rules, code of conduct, and policies set by the Board of Education or by their particular school (s 6).

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

2. Discipline

Section 43 of the Criminal Code 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” (Canadian Foundation for Children, Youth and the Law v Canada, 2004 SCC 4 at para 2). However, the School Act specifically states that discipline of a student must be similar to that of a kind, firm, and judicious parent, and must not include corporal (physical) 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 BC is entitled to instruction in English (School Act, s 5). However, under section 23 of 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-speaking minority population of the province in which they reside, and their parents 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-speaking 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)), meaning they cannot be religiously affiliated. For a case that applies s 76(1) please see Servatius v Alberni School District No. 70, 2022 BCCA 421. In this case, a mother claimed that her children’s school had violated their religious freedom after an elder performed a smudging demonstration, and a hoop dancer said a prayer while performing at the children’s school assembly. The BC Court of Appeal ruled that the demonstrations were not religious ceremonies but public demonstrations for the purposes of building community and teaching students about Indigenous culture, practices recommended by Article 15 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

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

Parents are jointly and severally liable for intentional or negligent damage to school property caused by their children (s 10 of the School Act). Please see Nanaimo-Ladysmith School District No. 68 v. Dean 2015 BCSC 11 for an example of parents being held liable for the negligent destruction of school property by their son. In this case, a 14-year-old student attached their friend’s padlock to the head of an overhead sprinkler in their school, which caused the entire sprinkler system to become activated, resulting in extensive damage to the school. Judgement was granted against the parents for $48,630.47 worth of damage.

There is no action against a school 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)). Note section 94 limits liability, but does not absolve a board from vicarious liability.

Any person who believes a child, whether registered or not, is not enrolled in 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 dismissed an application for leave to appeal from a BC Human Rights Tribunal finding of discrimination against a BC school board relating to the homophobic harassment of one of its students (see North Vancouver School District No 44 v Jubran, [2005] SCCA No 260 and North Vancouver School District No 44 v Jubran, 2005 BCCA 201 at paras 91–102). 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.

The Ministry of Education has developed the Sexual Orientation and Gender Identity (SOGI) 123 initiative, to guide educators on instruction about sexual orientation and gender identity. The aim of this initiative is to foster inclusion and respect for students who, because of their identity or expression, may face discrimination while attending school. In Hansman v. Neufeld, 2023 SCC 14, the Supreme Court of Canada addressed the conflict between freedom of expression and the protection of one’s reputation in the context of a critique of SOGI. In this case, Mr. Neufeld, a public school board trustee, made controversial online posts criticizing SOGI. Mr. Hansman, a gay man and teacher, was prominent amongst the dissenting voices and made statements to the media regarding his opposition to Mr. Neufeld’s views. Mr. Neufeld subsequently filed a defamation suit against Mr. Hansman. The SCC ruled in favour of Mr. Hansman, writing that “Not only does protecting Mr. Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value” (para 9). In this case, the SCC acknowledged that transgender and other 2SLGBTQ+ youth are especially vulnerable to expression like Mr. Neufeld’s that reduces their “worth and dignity in the eyes of society and questions their very identity” (para 9).

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 their health, or risk to their life.

Under the Child Family and Community Service Act, RSBC 1996, c 46 (CFCSA), 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). When 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 the Infants Act, RSBC 1996, c 223, 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 their 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:

  1. Explained to the minor and has been satisfied that the minor understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care; and
  2. Has made reasonable efforts to determine and has concluded that the health care is in the minor'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 parens patriae (guardian of persons under a legal disability) jurisdiction of the Supreme Court and is now codified under section 29 of the CFCSA.


© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.