Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada
III. Review of Children’s Participatory Rights in Canada
D. Adoption Proceedings
The United Nations Committee on the Rights of the Child recommends that adoption should be an area in which children’s participation rights under Article 12 are promoted and protected. In Canada, adoption proceedings are governed by provincial or territorial legislation. About half of Canadian jurisdictions deal with adoption proceedings as part of their broader child protection statutes; the other half has specific adoption statutes. Some provinces and territories also have separate legislation governing inter-country adoption.Footnote 135
Children’s Views, Preferences and Wishes
All adoption statutes in Canada provide that a child’s views are relevant to adoption determinations. Like custody and access and child protection decisions, each of the adoption statutes either directs that “best interests” is a guiding principleFootnote 136 for adoption or that adoption orders must be made according to the child’s best interests,Footnote 137 and determining the best interests of the child includes consideration of the child’s views, preferences or wishes.
In the Northwest Territories, the Adoption Act specifies that a child’s views and preferences should also be considered before a decision is made about placement of the child for the purposes of potential adoption. Section 7(4) directs that where a pre-placement report is prepared at the request of the Director of Adoptions, the report must include the child’s views on the proposed placement and adoption.Footnote 138 Similarly, British Columbia’s Adoption Act requires applicants proposing adoption of a child between 7 and 12 years of age to arrange for an authorized person to meet the child and prepare a report on whether the child understands what adoption means, and if the child has any views on the proposed adoption.Footnote 139 This report must be filed with the court before an adoption order is made.Footnote 140
Children’s Consent to Adoption
In every province and territory, children above a certain age must consent to their adoption. In most jurisdictions, the age of consent is 12. Ontario has the lowest age of consent for adoption, at 7 years of age.Footnote 141 In some places, children under the specified age of consent are still consulted. For example, Newfoundland and Labrador’s Adoption Act requires that children five years of age or older be counseled on the effect of adoption before being placed.Footnote 142 British Columbia’s Adoption Act has a similar counseling provision for children who are “sufficiently mature.”Footnote 143 In Manitoba, the Adoption Act requires that where a child is under twelve or unable to consent, the court shall, “where appropriate and feasible, take into account the wishes of the child.”Footnote 144 In Prince Edward Island, children twelve years of age or older are required to provide consent, and the court may order that consent is required “in any other case,” which could result in the involvement of younger children.Footnote 145
Some jurisdictions require or allow children to consult with a lawyer before providing consent to adoption. In Saskatchewan and Ontario, independent legal advice is mandatory before a child can provide consent to an adoption.Footnote 146 In Manitoba, children need only be advised of their right to independent legal advice.Footnote 147 The Northwest Territories’ Adoption Act also requires that children be informed of how to obtain legal advice, and where a child requests such advice, aided in finding counsel to provide that advice.Footnote 148
Adoption legislation also provides for dispensing with a child’s consent to adoption. In the Northwest Territories and Saskatchewan, the court may dispense with the requirement of a child’s consent where it would be in the best interests of the child.Footnote 149 In Alberta, which has a lower standard, the court may dispense with the consent of the child “if the Court, for reasons that appear to it to be sufficient, considers it necessary or desirable to do so.”Footnote 150 Other jurisdictions provide that a child’s consent may be dispensed with for reasons of incapacity. For example, in Manitoba, the court may dispense with the child’s consent where the child is “unable to understand or give consent.”Footnote 151
Ontario’s Child and Family Services Act establishes two situations where the court may dispense with a child’s consent where obtaining consent would cause the child emotional harm, or where the child is unable to consent because of a developmental disability.Footnote 152 In C. (A.) v. A. (V.), Justice Phillips of the Ontario Court of Justice considered the appropriate standard for dispensing with a child’s consent on the basis of emotional harm.Footnote 153 In that case, a stepfather moved to dispense with the consent of his 12year-old step-son on the basis that the child did not know that the stepfather was not the child’s biological father and that learning this information would cause the child emotional harm. According to Phillips J., to establish risk of emotional harm that would justify dispensing with the consent of a child, an applicant must provide evidence from an expert witness skilled in making that assessment, for example a psychiatrist or psychologist. Lay testimony is not sufficient. Phillips J. justified this high standard on the basis that it was important to consult children on decisions like adoption which carry significant consequences for the child (i.e. “the severing of a prior family connection”).Footnote 154 In underlining the importance of requiring children’s participation, the judge cited and relied on Article 12 of the CRC.
Children’s Participation at Adoption Hearings
Some jurisdictions provide for children’s attendance and participation at adoption proceedings. Some statutes like the Yukon’s Child and Family Services Act only provide that a child has a “right to be present.”Footnote 155 Others statutes are more explicit, providing that a child has a right to be heard. For example, Prince Edward Island’s Adoption Act says that, “where it is practical to do so, the court shall give the child the opportunity to be heard.”Footnote 156 Alberta’s Child, Youth and Family Enhancement Act grants a child old enough to consent to the adoption (i.e. 12 years of age or older) the right to be heard, in person or through counsel.Footnote 157
Ontario’s Child and Family Services Act also grants children the right to participate in openness proceedings, which determine whether an adoption order will include provision for contact with parents or other relatives, as if the child were a party.Footnote 158 Ontario’s Act also provides for legal representation for children in openness hearings, which determine whether a child will have continuing post-adoption contact with parents or other relatives. Under s. 153.5(2), the court may, with the consent of the Children’s Lawyer, authorize the Children’s Lawyer to represent the child where the court determines that legal representation is desirable.Footnote 159 Ontario judges have also ordered representation for children in adoption proceedings. In C. (M.A.) v. K. (M.),Footnote 160 Justice Cohen of the Ontario Court of Justice relied on rule 4(7) of the Family Law Rules and s. 89(3.1) of the Courts of Justice Act to appoint counsel for a 5 year-old child who was the subject of an adoption application. While Cohen J. found that representation to ascertain the child’s views and preferences would be futile since the child was so young, the judge found that representation could protect the child’s best interests. Counsel for the child might be able to identify broader issues than those raised by the parties themselves, who were closely focused on their own perceptions of the child’s best interests.Footnote 161
E. Criminal Proceedings
Children may be involved in criminal proceedings either as witnesses, often testifying about their victimization, or as alleged offenders. While other provisions of the CRChave frequently been cited in cases dealing with both child victims and offenders, Article 12 has almost never been cited in the context of either type of criminal proceeding (though other provisions of the CRC have been influential in Canada in the development of constitutional protections for young offenders).Footnote 162 However, despite the absence of citation of the CRC,over the past three decades there have been very significant changes in Canadian law to allow for more effective participation by children in both of these proceedings. Since Article 12 of the CRC is rarely invoked in this context, the treatment of issues in this paper of issues related to criminal proceedings is relatively brief.
Hearing Child Victims and Witnesses
Until the 1980s, Canadian law was premised on the view that child witnesses were inherently unreliable, and very little effort was made to accommodate children in the criminal courts.Footnote 163 The provisions governing the presumed incompetency of child witnesses and the requirements for corroboration of children’s testimony made it rare for children under 14 years of age to testify, and many cases involving child victimization were not prosecuted; indeed, many victims of child abuse never reported to the police or even disclosed their abuse.
In the late 1980s, the justice system began to respond to the increased awareness of the nature and extent of child abuse, and to the growing body of psychological research on the reliability of child witnesses.Footnote 164 As a result, judges and legislators introduced many substantive, evidentiary, and procedural reforms, which have resulted in many more children testifying in court, starting as young as three years of age. Amendments to the Canada Evidence Act in 1988 and 2006 abolished the requirements for corroboration of children’s testimony and allow children to testify if they are “able to communicate the evidence.” Amendments to the Criminal Code allow children to testify by closed circuit television and to have a support person sit close to them while testifying, reducing the stress of this process for children, and allowing more children to come forward to testify about their victimization. Videotapes of police interviews with children and children’s hearsay disclosures of abuse may now be admitted into evidence, helping to prove their victimization. Police investigators, prosecutors and judges now have much better education about issues related to child development and communication with children. In many places in Canada there are now victim-witness workers who assist in preparing children for the court process, and providing support for children and their parents.
Lawmakers in Canada continue to struggle with balancing the need to expand the scope for admission of children’s evidence and support their involvement in the criminal justice system against protection of the rights of the accused and the right to a fair trial. There continue to be concerns about how victims, including children, are treated in the criminal justice system.Footnote 165 While victim-witness workers may serve as informal advocates, there are concerns that too often there is insufficient regard in court to the needs and interests of children, for example, for use of accommodations like closed circuit television. However, the Canadian justice system has reached a better balance, one that more faithfully reflects the growing body of research on child development and the capacities of children, without sacrificing the rights of the accused, and that gives child victims a much greater opportunity to participate in the criminal process.
Participation Rights of Young Offenders
The Youth Criminal Justice Act (YCJA)Footnote 166 came into force in 2003. Although significantly changing some aspects of the law, and resulting in significant decreases in the rates of use of courts and custody for youthful offenders, the YCJA largely maintained the due process and participatory rights introduced by the previous law, the Young Offenders Act.Footnote 167 Reflecting Article 12 of the CRC, the YCJA s. 3(1)(d)(i) provides young persons dealt with under the Act “a right to be heard in the course of and to participate in the processes… that lead to decisions that affect them.”
In addition to the protections afforded to adults involved in Canada’s criminal justice processes under both the Criminal Code and the Charter of Rights and Freedoms, the YCJA provides special and significant legal rights to youths in recognition of their greater vulnerability. The YCJA, for example, constrains questioning by the police of young persons suspected of offences. Section 146 of the YCJA provides that a statement made by a young person being questioned by the police as a suspect is admissible only if the youth has received an explanation “in language appropriate to his or her age and understanding” that the youth is not obliged to make a statement, and that the youth has the right to have a lawyer or parent present while a statement is made; any waiver of these rights by a youth must be in a signed statement or audio- or video-recorded waiver. The Supreme Court has made clear that it is not sufficient for a police officer to merely “read a youth his rights” from a form, but rather the police must provide an explanation that takes account of the youth’s age and language comprehension. In its 2008 decision in R. v. L.T.H.,the Supreme Court emphasized the importance of the protections against improper questioning of youth suspects by police. Justice Fish wrote:
Young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate. Parliament has for that reason provided them by statute with a complementary set of enhanced procedural safeguards in s. 146 of the Youth Criminal Justice Act . . . procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.Footnote 168
Despite these legal protections, in practice young persons being interrogated by police often fail to appreciate the significance of their legal rights.Footnote 169 Most youths who are questioned by the police will make a statement that implicates them in the offence, usually waiving the right to advice from counsel or parents.
In recognition of the vulnerability of youth and the challenges that they face in understanding and participating in the youth court process, the YCJA has special provisions to facilitate access to legal representation. Lawyers for youth may provide assistance at the time of questioning by the police, at a pre-trial bail hearing, at trial, and at a sentencing or review hearing.
In proceedings under the YCJA, if a youth wants to have a lawyer and is unable to obtain legal representation, s. 25 requires the judge to order that representation is to be provided. While judges can consider parents’ financial means when determining whether a youth is “able” to obtain representation, the youth court cannot order parents to pay for a lawyer. Parents may choose to pay for counsel for their child,Footnote 170 but many parents are unwilling or unable to pay for a lawyer for their children, and very few youths have their own financial resources to retain counsel. If parents are paying for a lawyer there may be some confusion as to who is instructing the lawyer. Section 25(8) of the YCJA provides that a youth justice court judge shall ensure that a youth is “represented by counsel independent” of the parents, if it appears that the interests of the youth and parents conflict or the best interests of the youth require representation by his or her own counsel.
For the most serious cases, youth involved in the court process will always have legal representation, whether through legal aid, their parents’ paying for counsel or an order under s. 25 of the YCJA. However, the process for making an order for representation varies. Not infrequently there are delays in securing access to counsel, and some youths plead guilty “to get things over with,” without having had proper legal advice and representation. Further, there are concerns about the quality of representation provided to youth. There are a few places, such as Calgary and Edmonton, where there are lawyers with training in dealing with adolescent clients and support from social workers at specialized clinics doing youth representation, but in most locales there are concerns that some of the lawyers who do this type of work may lack the training, knowledge and resources to provide effective representation for adolescent offenders.
Likely because the YCJA affords significant participatory rights to youth and lawyers, the courts in Canada have had very little need to cite Article 12 of the CRC in dealing with youth offending issues.Footnote 171
F. Proceedings About Health Care
In Canada, children’s decision-making about health care issues occurs within a complicated legal framework. First, there is the common law “mature minor” doctrine. Generally, parents are entitled to make treatment decisions on their children’s behalf. The mature minor doctrine, however, allows children who are sufficiently mature to make their own treatment decisions. Second, there is provincial and territorial legislation governing consent to medical treatment. These statutes often provide a specific age at which children are presumed competent to consent to treatment. Third, there is child protection legislation. These provincial and territorial statutes allow a child protection agency to apply to a court to order treatment for a child where either the child or parent is refusing to consent. Finally, there are cases interpreting how these sources of law interact and which rules will ultimately govern health care decision-making for children.
Consent to Treatment Legislation
Most provinces and territories have legislation governing consent to medical treatment. Some of this legislation is “global,” applying to both adults and children; some is child-specific.Footnote 172
Jurisdictions vary in how they approach children’s consent to treatment. In some jurisdictions, children’s consent to treatment is not specifically addressed. In Ontario, Prince Edward Island, and the Yukon, all people – including children – are presumed capable of consenting to treatment.Footnote 173 Age is not mentioned in the legislation. This presumption can be rebutted where a child or an adult is unable “to understand the information that is relevant to making a decision about treatment.”Footnote 174 Other jurisdictions provide an age at which a child is presumed capable of consenting to treatment. In Manitoba and Newfoundland and Labrador, this age is 16.Footnote 175 Children 16 and over are presumed capable of consenting; children under 16 are presumed incapable. This means that children under 16 may consent to treatment where there is evidence to establish capacity.
In H. (P.) v. Eastern Regional Integrated Health Authority,Footnote 176 Justice LeBlanc of the Newfoundland and Labrador Supreme Court considered whether the court had authority to order a 16 year-old child to undergo treatment where the child had capacity to refuse to consent to such treatment. The case involved an application by the child’s mother to determine the capacity of her daughter to refuse to consent to treatment. In Newfoundland and Labrador, children 16 years of age or older are not subject to child protection legislation, so no child protection agency was involved. The issue of overriding a capable child’s refusal to consent to treatment ended up being moot after LeBlanc J. determined that the 16 year-old did not have capacity, thus rebutting the statutory presumption. However, the judge held that even if the child had been found to have the capacity to refuse to consent to treatment, he would have ordered treatment pursuant to the court’s parens patriae jurisdiction. Even though the child was not subject to the province’s child protection legislation, LeBlanc J. determined that treatment decisions by minors – even mature minors – had to accord with the child’s best interests.
New Brunswick’s Medical Consent of Minors Act provides that the rules governing consent to treatment by adults apply to children who are 16 years of age or older.Footnote 177 However, the Act also provides a framework that allows children under 16 to consent in certain circumstances. Section 3(1) states:
The consent to medical treatment of a minor who has not attained the age of sixteen years is as effective as it would be if he had attained the age of majority where, in the opinion of a legally qualified medical practitioner, dentist, nurse practitioner or nurse attending the minor,
- the minor is capable of understanding the nature and consequences of a medical treatment, and
- the medical treatment and the procedure to be used is in the best interests of the minor and his continuing health and well-being.Footnote 178
Maturity alone is not sufficient to allow a younger child to consent; the treatment must also be in the best interests of the child in the opinion of a medical practitioner. A similar statutory framework exists in British Columbia. That province’s Infants Act does not set an age at which children are presumed capable of consent. Instead, the Act provides that all children may consent to treatment where,
the health care provider providing the health care
- has 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
- has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests.Footnote 179
Again, medical professionals are to determine whether treatment is in the child’s best interests and the child has the requisite capacity.
Saskatchewan and Alberta both have legislation defining the age at which a child may provide a health directive. In Saskatchewan, the age is 16;Footnote 180 in Alberta, the age is 18. Neither statute provides guidance on medical decision-making by children under those ages. Absent an application by a child protection agency for authorization to make a treatment decision on the child’s behalf, the common law “mature minor” rule would likely apply.
Child Protection Legislation
All Canadian jurisdictions have child protection statutes that allow a state agency to make treatment decisions on behalf of a child in certain circumstances. Where a parent refuses to consent to treatment, and this refusal places the child’s health or life in danger, child protection agencies are typically authorized to “apprehend” the child and provide the necessary consent in the place of the parent, subject to a process that requires a court order within a relatively short period of the apprehension. Parents must be notified of this process and have a right to participate. As discussed above, there are varying provincial provisions about children’s right to notice and participation in the child protection process, though in most jurisdictions older children may be involved.
Where the child is a “mature minor,” either according to common law or consent to treatment legislation, and refuses treatment, the situation becomes more complicated. A “mature minor” may still be a “child” under the relevant child protection statute, and thus subject to the state’s protection powers.
The leading authority on the interplay between the mature minor doctrine and child protection legislation is the Supreme Court of Canada decision in Manitoba (Director of Child & Family Services) v. C. (A.).Footnote 181 The child was a 14 year-old Jehovah’s Witness who had been admitted to hospital for internal bleeding; her treating physicians expressed concern that there was a serious risk to her health, and perhaps her life, without a blood transfusion, but both the girl and her parents refused to consent to a blood transfusion. The child protection agency apprehended the child and applied to the court under Manitoba’s Child and Family Services Act for an order authorizing blood transfusions. Under s. 25(8) of the Child and Family Services Act, the court may authorize any medical treatment it considers to be in the best interests of the child. However, s. 25(9) provides that no order can issue with respect to a child 16 years of age or older without the child’s consent, unless that child cannot understand the relevant information or appreciate the reasonably foreseeable consequences of consenting or not consenting to the treatment. The child argued that because she had capacity to make the decision to refuse the transfusion, this decision should have been respected under the mature minor doctrine. At the trial hearing, the court agreed that the child had capacity to consent, but that this was irrelevant as she was under 16 years of age.
This decision was upheld by the Supreme Court of Canada, though the Court adopted a more nuanced approach. Justice Abella, writing for the majority, refused to accept that the mature minor doctrine allows mature children to make all decisions related to their medical care. While a mature minor can make decisions about such issues as an abortion, different considerations apply where the child is refusing life-saving treatment. While mature minors have strong claims to autonomy, Abella J. explained, where a child protection agency has brought an application to authorize treatment for a child, the state’s interest in protecting children is engaged and the state still has the power to consider whether allowing the child to exercise autonomy accords with the child’s best interests.. According to Abella J., the best interests of the child requires that children’s views and preferences be weighed in accordance with the child’s age and maturity. The more mature the child, the more deference provided to the child’s treatment decision. It is possible, Abella J. concluded, that in certain cases the degree of maturity exhibited by the child could be so high that to disregard his or her treatment decision would not be in the child’s best interests. The court needs to take account of both the child’s maturity and the nature of the medical decision. According to Abella J., this “sliding scale” of scrutiny is consistent with Article 12 of the CRC.Footnote 182
G. Immigration and Refugee Proceedings
Immigration and refugee proceedings in Canada are governed by the federal Immigration and Refugee Protection Act [IRPA],Footnote 183 and also affected by the international Convention Relating to the Status of Refugees,Footnote 184to which Canada is a signatory. While the IRPA governs proceedings involving children, there are few provisions that deal explicitly with children and their participation rights, such as s. 167(2) which addresses child representation. General provisions are assumed to cover child claimants and applicants. For example, s. 170(e), which provides those claiming Convention refugee status “a reasonable opportunity to present evidence, question witnesses and make representations”Footnote 185 also applies to children. The provisions that mention children require a consideration of the best interests of a child affected by an immigration or refugee decision.
Best Interests of the Child and the Right to Be Heard
A number of provisions direct that the best interests of the child be considered in decisions made pursuant to the IRPA. For example, s. 25(1) provides that the Minister may grant an otherwise inadmissible foreign national permanent residency status or exempt the individual from any criteria or obligations under the Act on the basis of humanitarian and compassionate grounds, “taking into account the best interests of a child directly affected.”Footnote 186
The importance of considering the best interests of the child in immigration and refugee matters was recognized by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration).Footnote 187 That case considered the factors to be weighed in an application based on humanitarian and compassionate grounds under the former Immigration Act. Justice L’Heureux-Dubé, writing for a majority of the Court, held that “the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them.”Footnote 188 The majority explained that this interpretation was consistent with Canada’s obligations under Articles 3 and 12 of the CRC. In Legault v. Canada (Minister of Citizenship and Immigration)Footnote 189 the best interests of the child was found to be an “important factor” that must be given “substantial weight,” in the decision of whether to remove a parent from Canada. However, the Federal Court of Appeal found that the best interests of the child were not determinative in making that decision.
In Hawthorne v. Canada (Minister of Citizenship and Immigration),Footnote 190 the Federal Court of Appeal was asked to define the circumstances under which the consideration of the best interests of the child would be satisfied when assessing an application based on humanitarian and compassionate grounds. A majority of the Court ruled that a best interests determination requires the decision-maker to take into account the views of the child in accordance with the child’s age and maturity, and that a child’s own views about his or her circumstances are to be considered, as required by Article 12 of the CRC. In this case the Court of Appeal held that the Immigration Officer had erred in failing to take account of the 15 year-old child’s strong preference to continue to live in Canada with her mother, who faced deportation, rather than her live with her father, who was a citizen and not facing deportation.
Any child who is the subject of proceedings under the IRPA must be assigned a “Designated Representative.”Footnote 191 This Designated Representative is usually the child’s parent, but may be a lawyer.Footnote 192 According to Guideline 3 of the Chairperson’s Guidelines, the duties of a Designated Representative are as follows:
- To retain counsel;
- To instruct counsel or to assist the child in instructing counsel;
- To make other decisions with respect to the proceedings or to help the child make those decisions;
- To inform the child about the various stages and proceedings of the claim;
- To assist in obtaining evidence in support of the claim;
- To provide evidence and be a witness in the claim;
- To act in the best interests of the child.Footnote 193
The appointment of a Designated Representative for a child must occur as soon as possible, and the appointment applies for the duration of the proceedings.Footnote 194 Courts have held that failure to appoint a Designated Representative for the child in a timely fashion is a ground for judicial review, and may result in the matter being remitted for a rehearing.Footnote 195
In Manalang v. Canada (Minister of Public Safety and Emergency Preparedness),Footnote 196 Justice Heneghan of the Federal Court considered the rights of children under Article 12 of the CRC who have been assigned a Designated Representative pursuant to the IRPA. The case involved an application by a mother and her two minor children for judicial review of a decision by the Immigration Appeal Division (IAD) dismissing the applicants’ appeals from orders that prevented them from remaining in Canada as immigrants sponsored by the mother’s husband, the children’s step-father. A significant factor in the exclusion application was that the mother had lied on her application for admission, stating that her husband was the children’s father. The applicants raised a number of arguments, including that the IAD failed to give due weight to the interests and wishes of the children as required by Article 12 of the CRC. At an initial hearing before the IAD, there had been no Designated Representative for the children, so that proceeding was terminated and a new IAD panel heard the matter, with the mother’s lawyer as the Designated Representative for the children. In upholding the IAD decision to exclude the mother and her children, Heneghan J. held that the children had the benefit of a Designated Representative, whose role it was to “ensure that their interests were fully and adequately disclosed to the panel,” and that there was no evidence to suggest that the representative had been barred from performing this role.Footnote 197 As a result, the children had exercised their right to be heard under Article 12 of the CRC.
Issues of effective advocacy and participation are especially pressing for the growing numbers of refugee claimants who are “unaccompanied minors,” children who arrive in Canada without parents or guardians and seek refugee status.Footnote 198 While some of these children may have relatives in Canada who can provide some assistance, this is a particularly vulnerable population and it is noteworthy that some lawyers are making special efforts to ensure that there is adequate representation for these children.Footnote 199
H. Rights in Education Proceedings
Most children spend very substantial portions of their time in schools, and educators and school tribunals make very significant decisions about children’s lives. The United Nations Committee on the Rights of the Child has recognized that the right of children “to be heard within education is fundamental to the realization of the right of education,” which is protected under Article 28 of the CRC.Footnote 200 The Committee recommends that children be heard with respect to the development of school policies and codes of behavior, as well as in proceedings that affect their individual education. Too often, however, children are not included in decision-making about their education and schooling.
In Canada, education is governed by provincial or territorial legislation;Footnote 201 although there is variation in legislation and curricula across the country, there is are common issues in all jurisdictions. Most decisions about children and their education are made by principals, school boards, and administrative tribunals. While it is clear that the CRC, including Article 12, apply to these decisions, since relatively few cases result in court applications for judicial review, it is not easy to get a clear picture of how the CRC is being applied in the educational context in Canada.
One of the important proceedings that affects the education and development of children are decision-making processes governing education for children with special needs. These decisions are generally initially made at the school board level, with the possibility of an appeal to an administrative tribunal. In one of the few high visibility education law cases, parents appealed the decision to exclude their 12 year old disabled child from a program that integrated her into the regular school program and place her a special education class all the way to the Supreme Court of Canada. In its 1996 decision in Eaton v Brant County Board of Education the Supreme Court stated:
the decision-making body must further ensure that its determination of the appropriate accommodation for an exceptional child be from a subjective, child-centred perspective, one which attempts to make equality meaningful from the child's point of view as opposed to that of the adults in his or her life. As a means of achieving this aim, it must also determine that the form of accommodation chosen is in the child's best interests… For older children and those who are able to communicate their wishes and needs, their own views will play an important role in the determination of best interests. Footnote 202
Despite this judicial statement about the importance of involving children in decision-making, empirical research suggests that in Canada children with disabilities generally do not participate either directly or indirectly in decisions that affect them in an educational context. Footnote 203 While parents have standing in these processes, there may be situations in which parents and children have differing views and interests, and children’s perspectives and preferences may not be adequately represented.
There are also concerns about the limited role for children in school disciplinary proceedings that may result in their suspension or expulsion. Although parents have standing in these proceedings, students generally do not. It has been argued that Article 12 requires greater procedural protections for students subject to disciplinary proceedings. Paré, for example, argues that children should be given an opportunity to be heard directly, as opposed to indirectly through their parents, at disciplinary hearings.Footnote 204
Another fundamental concern is that schools in Canada often fail to provide adequate education to children about their rights, and in particular issues related to the CRC are not addressed in most curricula.Footnote 205 Although both adults and children have low levels of awareness, a study commissioned by War Child Canada found that adults are more likely than children to have awareness of the CRC (55% versus 33%).Footnote 206 Most children reported that they have not heard of any major United Nation’s international human rights treaties. Significantly, children born outside of Canada had greater awareness of the CRC than those born in Canada (43% versus 32%). It would seem that only in Nova Scotia does the provincial curriculum mandate education about the CRC.Footnote 207
Despite the failure to systemically address issues of children’s rights, there have been cases in which older adolescents have, through litigation guardians, been able to bring court applications to force schools to recognize their rights. Most notably in Ontario, students have brought successful court actions in regard to school proms, ironically an event that symbolizes the end of their time as students in secondary school.Footnote 208
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