Education
The Convention on the Rights of the Child (CRC) requires countries such as Canada to support the right of every child to access education directed at reaching their fullest potential and living a responsible life in a free society.
…while article 28 focuses upon the obligations of State parties in relation to the establishment of educational systems and in ensuring access thereto, article 29 (1) underlines the individual and subjective right to a specific quality of education.
CRC General Comment No. 1 (2001): The Aims of Education
Education is generally a matter of provincial/territorial jurisdiction in Canada although education for Indigenous children often falls under federal jurisdiction.
Canadian legal professionals, parents, students and educators may not relate educational services to universal child rights standards despite Canadian jurisprudence touching on areas in education that can be harmonized with them and emphasizing the interconnectedness of the CRC’s provisions.
International Law
- CRC Articles 28, 29, 2, 3, 4, 5, 6, 12, 13, 14, 15, 16, 17, 19, 23, 30 and 31
CRC Article 28
- States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
- Make primary education compulsory and available free to all;
- Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
- Make higher education accessible to all on the basis of capacity by every appropriate means;
- Make educational and vocational information and guidance available and accessible to all children;
- Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
- States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.
- States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.
CRC Article 29
- States Parties agree that the education of the child shall be directed to:
- The development of the child's personality, talents and mental and physical abilities to their fullest potential;
- The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
- The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
- The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
- The development of respect for the natural environment.
- No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
- UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) – see Article 26
- UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 – see Article 13; see also Committee on Economic, Social and Cultural Rights, General Comment No. 13 (1999) – The right to education (article 13 of the Covenant)
- UN General Assembly, Convention on the Rights of Persons with Disabilities, 24 January 2007, A/RES/61/106 – see Article 24; see also Committee on the Rights of Persons with Disabilities, General Comment No. 4 - Article 24 : Right to inclusive education
- UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295 – see Articles 14, 15
- UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13 –see Articles 10, 14(2)(d); see also Committee on the Elimination of Discrimination against Women, General recommendation No. 36 (2017) on the right of girls and women to education
- UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195 – see Articles 5(v), 7
- UN Educational, Scientific and Cultural Organisation (UNESCO), Convention Against Discrimination in Education, 14 December 1960 – Canada has not ratified this instrument
- Organization of American States (OAS), Charter of the Organisation of American States, 30 April 1948 – see Articles 47 to 52
- Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969 – see Article 26; Canada has not ratified this instrument
Interpretive Sources
UN Committee on the Rights of the Child, General Comments – see in particular
- General Comment No. 1 (2001) – The aims of education
- General Comment No. 7 (2005) – Implementing child rights in early childhood
- General Comment No. 9 (2006) – The rights of children with disabilities
- General Comment No. 11 (2009) – Indigenous children and their rights under the Convention
- General comment No. 13 (2011) – The right of the child to freedom from all forms of violence
- General Comment No. 12 (2009) – The right of the child to be heard
- General Comment No. 14 (2013) – The right of the child to have his or her best interests taken as a primary consideration
- General comment No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts1
- General Comment No. 20 (2016) – The implementation of the rights of the child during adolescence
- General comment No. 21 (2017) – Children in street situations
- General Comment No. 25 (2021) – Children’s rights in relation to the digital environment
- General comment No. 26 (2023) on children’s rights and the environment, with a special focus on climate change
Canadian Law
Constitutional Law
- The Constitution Act, 1867, 30 & 31 Vict, c 3 – Under section 93, education is provincial jurisdiction and includes protections for denominational, separate, or dissentient schools. Some provinces have since moved away from denominational, separate or dissentient schools to other models: see, for example, Reference re: Education Act (Que.), 1993 CanLII 100 (SCC), [1993] 2 SCR 511. The federal jurisdiction over “Indians” under section 91(24) includes Indigenous education.
- Canadian Charter of Rights and Freedoms, Part 1 of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 – Section 23 enshrines minority language education rights for French and English linguistic minorities in the provinces. Sections 25 and 35 protect and affirm Indigenous rights, including education rights under treaties and self-government agreements. Section 29 ensures that the Charter does not infringe on education rights under section 93 of the Constitution Act, 1867 Section 15 of the Charter guarantees the right to equality without discrimination in all public services including educational services. Section 27 of the Charter requires all Charter provisions to be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Federal Law
Education is a matter of provincial jurisdiction under the Constitution Act, 1867. However, the federal jurisdiction over “Indians” includes Indigenous education.
- Indian Act, RSC 1985, c I-5 – See sections 114 to 122
- Jordan’s Principle is intended to ensure all First Nations children living in Canada can access the products, services and supports they need, when they need them, including with respect to education. For the full order of the Canadian Human Rights Tribunal with respect to Jordan’s Principle, see initially First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2017 CHRT 14 (CanLII) and the Tribunal’s updated order First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2017 CHRT 35 (CanLII).
- Indigenous communities have entered into agreements with federal and provincial governments with respect to education. Federal legislation has been passed to enshrine these agreements, for example:
- James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32 – enshrines in law the terms of the James Bay and Northern Quebec Agreement which, among other measure, establishes Indigenous school boards in Quebec’s North.
- Mi'kmaq Education Act, SC 1998, c 24
- First Nations Jurisdiction Over Education in British Columbia Act, SC 2006, c 10
- Anishinabek Nation Education Agreement Act, SC 2017, c 32
- Library of Parliament, Bill C-33: First Nations Control of First Nations Education Act (28 April 2014) – Legislative summary of proposed federal bill from 2014 that did not become law; includes background information on past efforts to reform First Nations education in Canada.
- United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 – Incorporates UNDRIP into Canadian federal law, including article 14 respecting Indigenous control of education and article 15 respecting education about Indigenous peoples.
- In 2021 and 2022, the Government of Canada entered into Early Learning and Child Care Agreements with each of the provinces and territories.
Provincial/Territorial Legislation
Each province and territory has its own education legislation. The below listing focuses on legislation with respect to public education, as well as other legislation relating to education rights. Also included are selected reports with respect to education from independent officers, commissions, and other appointed individuals/bodies.
Public education systems in each province differ in terms of their structures, with some retaining local governance of schools through elected school boards (e.g., Ontario) while others have moved to education centre models that are more directly connected to provincial education ministries (e.g., Nova Scotia). Provinces and territories also have different structures with respect to denominational, separate or dissentient schools, with respect to minority language schools, with respect to Indigenous schools, and with respect to private schools.
In some provinces and territories, education-related concerns can be brought to the attention of ombuds and/or child and youth advocates, as well as information and privacy commissioners.
British Columbia
Alberta
Saskatchewan
Manitoba
Ontario
- Education Act, RSO 1990, c E.2
- Human Rights Code, RSO 1990, c H.19 – Section 19 protects the rights of separate schools under the Constitution Act, 1867 and the Education Act, including with respect to the duties of teachers in those schools.
- Immunization of School Pupils Act, RSO 1990, c I.1
- Indigenous Institutes Act, 2017, SO 2017, c 34, Sch 20 – Legislation setting out requirements for recognition of Indigenous postsecondary institutions in Ontario
- Inquest into the death of Katelynn Angel Sampson (2016) – Coroner’s Jury recommendations included: incorporating the UNCRC into all legislation affecting children, including the Education Act; the implementation of child rights impact assessments in policy development; matters related to social workers in schools, student records, and curriculum; training for school board staff on the duty to report; and, children’s rights education in schools (Recommendations 1, 3, 86 to 93, 138 to 164).
- The Ontario Human Rights Commission has issued reports on Ontario’s education system in relation to issues affecting students with reading disabilities and with respect to discrimination in school discipline:
- Right to Read: Public inquiry into human rights issues affecting students with reading disabilities (February 2022)
- The Ontario Safe Schools Act: School discipline and discrimination (July 8, 2003) – Ontario’s legislation around safe schools was later amended as a result of a human rights settlement with the provincial government
Quebec
- Loi sur l'instruction publique, RLRQ c I-13.3 – Section 64 stipulates “Every decision of the governing board [of a school] must be made in the best interests of the students.”
- Loi sur l'instruction publique pour les autochtones Cris, Inuit et Naskapis, RLRQ c I-14
- Loi sur les services de garde Ă©ducatifs Ă l'enfance, RLRQ c S-4.1.1 – Section 4 stipulates “Every child has a right to quality personalized educational childcare services until the end of elementary school.”
- An Act respecting the National Student Ombudsman , SQ 2022, c.C-17 – Establishes a national Student Ombudsman ( le protecteur de l’eleve) as well as regional ombudsman responsible for ensuring that the rights of students and their parents are respected in relation to all educational services.
- Charte des droits et libertĂ©s de la personne, RLRQ c C-12 – Section 40 of Quebec’s Charter of Human Rights and Freedoms establishes a right to free public education “to the extent and according to the standards provided for by law”.
- Code civil du QuĂ©bec, RLRQ c CCQ-1991 – Articles 32 to 34 set out protections for children’s rights, including that “Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights” (art 33) and that courts are required to give a child an opportunity to be heard in a matter affecting them, “if his age and power of discernment permit it” (art 34).
- Quebec’s Protecteur du Citoyen has issued reports on Quebec’s education system in relation to the provision of special education supports in the school system and to effective administrative complaint procedures for students:
New Brunswick
Prince Edward Island
Nova Scotia
Newfoundland and Labrador
Yukon
Northwest Territories
Nunavut
- Education Act, SNu 2008, c 15 – Preamble includes explicit reference to UNCRC.
Indigenous Law
- Indigenous communities have entered into agreements with federal and provincial governments with respect to education. Examples of Indigenous education authorities include:
- The Calls to Action of the Truth and Reconciliation Commission of Canada include matters related to Indigenous education (6 to 12) and to education for reconciliation (62 to 65).
- United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 – Incorporates UNDRIP into Canadian federal law, including article 14 respecting Indigenous control of education and article 15 respecting education about Indigenous peoples.
- Renvoi Ă la Cour d'appel du QuĂ©bec relatif Ă la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des MĂ©tis, 2022 QCCA 185 (CanLII) – Reference to Quebec Court of Appeal on constitutionality of An Act respecting First Nations, Inuit and MĂ©tis children, youth and families, SC 2019, c 24. Includes lengthy discussion of self-government and education agreements with Indigenous communities across Canada. The Supreme Court of Canada found the Act to be constitutional in its entirety: Reference re An Act respecting First Nations, Inuit and MĂ©tis children, youth and families, 2024 SCC 5.
Case Law
International Case Law
- Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others, [2005] UKHL 15 – In a case brought by certain religious schools, the House of Lords found that Parliament was entitled to ban the practice of corporal punishment in all schools, even if it infringes on certain religious groups’ freedoms. For explicit consideration of the UNCRC, see the reasons of Baroness Hale of Richmond at paras 71ff.
- D. (a minor) -v- Refugee Appeals Tribunal & Anor [2011] IEHC 431 (10 November 2011) – A child of Serbian descent who is of Ashkali ethnicity was denied refugee status in Ireland by the Refugee Appeal Tribunal. In quashing the Tribunal’s decision, the High Court of Ireland found that the likelihood of pervasive discrimination in Serbia against the child given their ethnic minority status would lead to the denial of basic education, which in the circumstances rose to the level of persecution for the purposes of refugee determination.
- Minister of Basic Education v Basic Education for All (20793/2014) [2015] ZASCA 198 (2 December 2015) – The Supreme Court of Appeal of South Africa found that the failure to provide textbooks to all students in Limpopo province violated their right to education under South Africa’s constitution.
- Ruben Calleja Loma v. Spain CRPD/C/23/D/41/2017 The Committee on the Rights of persons with disabilities found that Spain violated an elementary pupil’s right to inclusive education under Article 24 of the UNCRPD by insisting that his parents send him to a segregated school environment, without considering the parents views or the opinion of their child’s psychologist and without exploring whether the child could be accommodated in the mainstream educational setting.
Canadian Case Law
Though many cases discussed below do not make explicit reference to the UNCRC, the obligations and principles derived from the cases and their application are often analogous to the obligations and principles in the UNCRC. For example, Charter issues with respect to student privacy in schools could be understood as engaging UNCRC articles 16 (privacy), 19 (protection from violence), and 28 (right to education with dignity). The battle for constitutional repatriation and entrenchment of fundamental rights and freedoms within the constitution was in important ways an exercise in national unity aimed at guaranteeing mobility rights, equality rights and official language minority educational rights in the constitution. It may be helpful therefore to consider section 23 minority education rights in the context of Article 2, 28, 29 and 30 of the UNCRC.
Supreme Court of Canada
Section 23 jurisprudence
- Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 SCR 342 – The Supreme Court of Canada held that section 23 of the Charter is a “sliding scale” that requires “management and control” of minority language schools by the official language minority community wherever the number of students in a particular geographic area warrants it. In those cases where numbers may not otherwise warrant a completely independent minority language school board, governments must protect minority language education rights by other means, such as representation on a school authority that guarantees minority language education and administrative control of minority language education facilities. The quality of minority language education should also be reasonably equal to that of the majority and funding should be provided to that effect.
- Association des parents de l’Ă©cole Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21 (CanLII), [2015] 2 SCR 139 – The Supreme Court of Canada set out the test for determining the equivalence of educational facilities for minority language rights holders under section 23 of the Charter.
- Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 (CanLII) – The Supreme Court of Canada found a decision of the Minister unreasonable for having failed to properly consider Charter values in the exercise of their discretion regarding admission of students to a French-language school. The Minister had failed to consider the values underlying the protection of official language minority education rights as set out in section 23 of the Charter.
Other relevant SCC jurisprudence
- Reference re: Education Act (Que.), 1993 CanLII 100 (SCC), [1993] 2 SCR 511 – The Supreme Court of Canada held that Quebec’s legislation restructuring its public education system from one organized according to religion to one organized according to language was constitutional under section 93 of the Constitution Act, 1867.
- Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 SCR 825 – The Supreme Court of Canada held that a school board has a duty to maintain a positive school environment for all persons served by it and must be ever vigilant of anything that might interfere with this duty, including the conduct of educators outside of school hours.
- R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171 – A majority of the Supreme Court of Canada held that the offence of sexual exploitation at section 153 of the Criminal Code does not require that an accused in a position of trust to have actually exploited that position of trust. Here, the Supreme Court found a teacher guilty of sexual exploitation of a 14-year-old former student, even though the conduct happened over the summer, off school premises, and was consensual. LaForest J, writing for the majority at para 44, found that, in the context of section 153 of the Criminal Code, “in the absence of evidence raising a reasonable doubt on this point, teachers are necessarily in a position of trust and authority towards their students.”
- Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241 – The Supreme Court of Canada, explicitly bringing the best interests of the child into special education decision-making, found that there is no presumption of integrated classrooms for students with special education needs. The best interests analysis includes the consideration of the child’s views for children who are able to express them. See paras 77, 79.
- R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 SCR 393 – The Supreme Court of Canada held that the in-school search of a student by a vice-principal in the presence of a police officer engaged the guarantee against unreasonable search and seizure under section 8 of the Charter. A majority of the Court found, however, that the search was reasonable in the circumstances. The combination of a reduced expectation of privacy in schools alongside the need to protect students and provide a positive atmosphere for learning indicated a more flexible approach to searches conducted by educators. The majority then set out a test for searches conducted by educators (see para 54).
- Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76 – A majority of the Supreme Court of Canada found that section 43 of the Criminal Code, which justifies a reasonable use of force by a parent or teacher against a child for corrective or educational purposes, is constitutional. The Court found that “best interests of the child” is not a principle of fundamental justice under section 7 of the Charter. Referring to article 3 of the UNCRC, the majority noted that best interests are ‘a’ primary consideration, not ‘the’ primary consideration, and thus may be subordinated to other concerns in appropriate contexts (see paras 9 to 12). The Court also referenced Articles 5, 19(1) and 37(a) of the UNCRC and other international human rights instruments but took a narrow interpretation of these in deciding that they did not explicitly ban the use of corporal punishment (see paras 32 to 34). The majority held that section 43 provides a proper balance between protecting children from harm and ensuring a stable home and school life (see paras 58 to 60).
- Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360 – The Supreme Court of Canada found that special education is the means by which students with learning disabilities are ensured “meaningful access to education”. The Court also sets out a test for discrimination in educational services under statutory human rights codes. See paras 32 to 48.
- A.B. v. Bragg Communications Inc., 2012 SCC 46 (CanLII), [2012] 2 SCR 567 – Recognizing the inherent vulnerability of children in Canadian law, the Supreme Court of Canada held that privacy and protection of children from cyberbullying are sufficiently compelling interests to allow for anonymizing the identity of a 15-year-old girl victim of cyberbullying and for a limited publication ban. The Court relied on social science evidence with respect to the impact of bullying and cyberbullying on children to ground its determinations.
- Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII), [2006] 1 SCR 256 – The Supreme Court of Canada held that a school board’s decision to prohibit a student from attending school while wearing a ceremonial kirpan was a violation of the student’s freedom of religion that could not be saved under section 1 of the Charter in the circumstances. The majority of the Court commented that it is incumbent on the school to instil values of religious tolerance that are “at the very foundation of our democracy” in case objections were raised by other students (see paras 76, 78 to 79).
- Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 SCR 613 – The Supreme Court of Canada discussed at length the balancing of the objectives of provincial curriculum with individual and collective religious rights in private schools, finding that the Minister of Education’s decision to refuse the private school’s request for an exemption from the ethics and religious culture curriculum was unreasonable.
- R. v. Jarvis, 2019 SCC 10 (CanLII), [2019] 1 SCR 488 – The Supreme Court of Canada held that female high school students who had been surreptitiously recorded in school by a teacher had a reasonable expectation of privacy in the circumstances. They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording.
Federal Courts and Tribunals
- X (Re), 2003 CanLII 55292 (CA IRB) – The Immigration and Refugee Board found that two school-aged children were refugees under the Convention Relating to the Status of Refugees based on the fact that they had been suspended from attending school in China because of their father’s political activity, thereby infringing to the right to education in the UNCRC.
Provincial and Territorial Courts
- Bonnah v. Ottawa-Carleton District School Board, 2003 CanLII 19087 (ON CA) – The Ontario Court of Appeal found that the exclusion of a student with special needs (“exceptional pupil”) from a school for the purposes of ensuring the safety of others was permitted under section 265(1)(m) of Ontario’s Education Act. However, the school board was not permitted to transfer the student to another school until the conclusion of an appeal of a placement decision by an Identification, Placement and Review Committee under regulations relating to exceptional pupils.
- E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893 (CanLII) – The Ontario Court of Appeal found no evidence of an infringement of a father’s freedom of religion when the school board denied the father’s request that he be given notice of and that his children be removed from any classroom discussions that are contrary to his religious beliefs. In support of its conclusions, the Court of Appeal referred to the balancing of religious freedoms in public education as discussed in S.L. v. Commission scolaire des ChĂŞnes, 2012 SCC 7 (CanLII), [2012] 1 SCR 235 and to the purposes of education as discussed in Chamberlain v. Surrey School District No. 36, 2002 SCC 86 (CanLII), [2002] 4 SCR 710. The concurring reasons of Lauwers JA (paras 44ff) explore the difficulties of applying the DorĂ©/Loyola framework relating to Charter values in administrative law to line decision-makers, particularly in the educational context.
- Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34 (CanLII) – The Saskatchewan Court of Appeal found that Saskatchewan’s funding of all pupils attending a Catholic school district regardless of whether the pupils are Catholic or not is consistent with the Constitution Act, 1867, s 93 and the Saskatchewan Act, s 17, and does not infringe the Charter. Leave to appeal to the Supreme Court of Canada refused.
- C.D. v. R.D., 2021 ONSC 6857 (CanLII) – In a family law case during the COVID-19 pandemic, the Ontario Superior Court stated that “the right to education is held by the child not their parent”. The case also affirms that, absent evidence otherwise, Ontario courts will presume in-person learning to be in the best interests of the child: see Zinati v. Spence, 2020 ONSC 5231 (CanLII), Nolet v. Nolet, 2020 ONSC 5285 (CanLII).
- UR Pride Centre for Sexuality and Gender Diversity v Saskatchewan (Education), 2023 SKKB 204 (CanLII) – In a Charter challenge to the Ministry of Education’s “Use of Preferred First Name and Pronouns by Students” policy, Justice Megaw of the Saskatchewan Court of King’s Bench granted an interlocutory injunction prohibiting the policy’s implementation pending a full hearing into its constitutionality (at para 132: “…the public interest in recognizing the importance of the governmental Policy is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity.”)
- UR Pride Centre for Sexuality and Gender Diversity v Government of Saskatchewan, 2024 SKKB 23 (CanLII) – Megaw J of the Saskatchewan Court of King’s Bench allowed an amended Charter application to proceed despite the Government of Saskatchewan’s invocation of section 33 of the Charter, i.e. the notwithstanding clause, in The Education (Parents' Bill of Rights) Amendment Act, SS 2023, c 46.
Provincial and Territorial Tribunals
- R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (CanLII) – In the first case applying the test for discrimination in education as set out in Moore to Ontario’s Human Rights Code (see paras 204ff), the Ontario’s Human Rights Tribunal found that the student was denied meaningful access to the education because of the school board’s difficult relationship with his mother and not because the school board was unable to meet the student’s needs. The Tribunal awarded monetary compensation, among other remedies.
- J.F. v. Waterloo Catholic District School Board, 2017 HRTO 1121 (CanLII) – The Human Rights Tribunal of Ontario upheld a decision by the school board to deny a student with autism spectrum disorder a service animal in school. The Tribunal found there was insufficient evidence to establish that the student had been adversely impacted by the school board’s decision, and that the school board had made other appropriate accommodations in the circumstances. In 2019, Ontario’s Ministry of Education released Policy/Program Memorandum 163 setting out obligations with respect to school boards’ policies on service animals in schools.
- U.M. v. York Region District School Board, 2017 HRTO 1718 (CanLII) – The Human Rights Tribunal of Ontario, while finding no discrimination under the Ontario Human Rights Code in the circumstances, includes a brief discussion of the interplay between "meaningful access to education" (see Moore) and "best interests of the child" (see Eaton) in the statutory human rights context. See paras 19 to 21, 83.
- L.K. v Upper Grand District Board (EA 311.7), 2019 CFSRB 2 (CanLII) – Ontario’s Child and Family Services Review Board upheld the expulsion of a child with autism from a specific school due to incidents of violent dysregulation. The Board’s findings were adopted by the Human Rights Tribunal of Ontario when determining that there was no discrimination under Human Rights Code in the circumstances: Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII).
- Armitage v. Ottawa Carleton District School Board, 2022 HRTO 252 (CanLII) – The Human Rights Tribunal of Ontario found that a school’s failure to properly consider the ongoing fear of a student who had previously been subjected to anti-Semitic conduct by another student created a barrier to the child’s meaningful access to education. See para 259.
Special Considerations
- Privacy – Student records are generally privileged under education legislation. Student records may also include personal and health information that is protected by provincial information and privacy laws. Moreover, children’s right to privacy should be kept in mind at all times, especially with respect to the posting of photos and other media to the internet.
- Expression and information – Children’s freedom of expression and access to information does not end at the school doors. Limits on student expression and access to information need to be linked to existing codes of conduct and relevant law, and need to be proportional in the circumstances.
- Non-discrimination and safe schools – Children’s right to education without discrimination and without violence is often set out in codes of conduct, safe and inclusive school policies, and human rights codes. Moreover, student discipline may take into account whether the conduct was motivated by discrimination (see, for example, Ontario’s Education Act, s 310(1)7.2).
- Intersections with immigration law – Depending on the jurisdiction, fees may be charged to attend public school depending on the immigration status of a child or their family. Moreover, children fleeing persecution in other countries may need additional school and community supports to ensure meaningful access to education.
- Intersections with youth criminal justice – In-school conduct can sometimes result in criminal charges. Some jurisdictions set out guidelines with respect to contact between school official and local police. Matters that come under the Youth Criminal Justice Act are subject to strict confidentiality requirements. Court orders with restricting a young person’s contact with victims may result in a young person changing schools or having limited access to school facilities. At all times, however, a young person remains entitled to receive an education.
- Intersections with family law – Family law disputes are known to spill over into schools. For example, a parent’s access to educational information may be in dispute, or arrangements for drop-off/pick-up at school may be complicated by family court orders. As school authorities will generally rely on the contents of court orders to determine the scope of their action, family court orders should be as explicit as possible with respect to matters related to the children’s schooling to ensure that the children’s right to education is not negatively impacted by their parents’ ongoing dispute.
- Intersections with child protection – Educators and school officials have a duty to report concerns with respect the health and safety of children to local child protection authorities. Some jurisdictions set out guidelines with respect to contact between school officials and child protection authorities. Child protection matters are generally subject to strict confidentiality requirements. Court orders with respect to placing children in care may result in changes to a child’s schooling situation. At all times, however, a child in care remains entitled to receive an education. Moreover, depending on the jurisdiction, child protection legislation may set out the right of a child in care to participate in decisions relating to their education.
- Intersections with labour and employment law – Engaging with children’s rights in schools sometimes also means engaging with the rights of educators and administrators. Schools are after all workplaces. For example, an educator may raise concerns about workplace health and safety related to the conduct of a dysregulated student. As a result, administrative or legal challenges of actions by educators and administrators in school systems may also engage collective bargaining and labour standards.
Practice Essentials
- As education law tends to be a speciality practice, there are few readily available practice tools. The below information is offered as a complement to the legal instruments and case law discussed above, and to the special considerations and resources below.
- Provincial and local education policies, procedures, and guidelines – In addition to formal legal instruments and case law, legal professionals working in education will need to be aware of policies, procedures, and guidelines issued by provincial education ministries, school boards, and local education authorities. These documents often define how principles set out in education legislation and case law are applied in local schools, and will be highly relevant in administrative or legal challenges of actions by educators and administrators in school systems. See, for example, the list of policy and program memoranda and the financial administration memoranda issued by Ontario’s Ministry of Education.
- Reports on education issues – In addition to formal legal instruments and case law, reports mandated by education ministries and reports of independent oversight bodies can provide context and data about issues within schools and school boards that may be relevant in administrative or legal challenges of actions by educators and administrators in school systems. See, for example, the 2020 investigation of the Peel District School Board that was ordered by the Minister of Education.
- Advocating for student participation in decision-making – Not all provincial and territorial education legislation explicitly provides for the participation of students in decisions that affect them. When challenging the actions of educators and administrators in school systems, be explicit about your expectation that the child’s right to be heard be respected and that students be given information about any proceedings relating to them. Doing so is consistent with the UNCRC and, in special education matters, a legal requirement (Eaton). Moreover, ensuring student voice in matters affecting them is often consistent with school board policies and procedures that encourage student participation in the school community.
- Advocating for best interests of students – No provincial and territorial education legislation, other than Quebec, explicitly provides that school decisions are to be made in the best interests of students. When challenging the actions of educators and administrators in school systems, be explicit about your expectation that the child’s right to have decisions made in their best interests be respected. This includes the right of the student to be heard, as above. Doing so is consistent with the UNCRC and, in special education matters, a legal requirement (Eaton).
- Balancing the responsibilities, rights and duties of parents – Parents and guardians play a central role in ensuring children’s education rights. Article 5 of the UNCRC says that parents and guardians “provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” The role of the parent under the UNCRC is to help ensure respect for children’s rights, which includes hearing children’s views and making decisions in their best interests.
- Where a child engages the services of a lawyer directly, the solicitor-client relationship is with the child directly, see Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII); Justice for Children and Youth v. J.G., 2020 ONSC 4716 (CanLII).
- For interpretive guidance on article 5 of the UNCRC, see: United Nations, Statement of the Committee on the Rights of the Child on article 5 of the Convention on the Rights of the Child (October 11, 2023)
- For a children’s rights lens on the use of preferred pronouns in schools, see Office of the Child and Youth Advocate, On Balance, Choose Kindness: The Advocate’s Review of Changes to Policy 713 and Recommendations for a Fair and Compassionate Policy, August 15, 2023. The Advocate also issued follow-up documents: Model Policy for District Education Councils; Addendum to the Advocate’s Report.
- Exhausting available remedies – Depending on the jurisdiction, educators and administrators in school systems may be delegated legal decision-making authority. Moreover, some jurisdictions have specialized tribunals for appeals relating to education matters (see, for example, Yukon’s Education Appeal Tribunal, Ontario’s Special Education Tribunals, Ontario’s Child and Family Services Review Board). In addition, there may be established complaints mechanisms for day-to-day administrative matters. Be aware of relevant authorities and processes before engaging in advocacy with respect to education rights.
- Maintaining ongoing relationships – Most children attend public schools for at least 12 years. When challenging the actions of educators and administrators in school systems, this reality must be kept in mind. A child’s education is very likely to be affected by the tenor of the relationship between their family and school officials (see, for example, R.B., above). Similarly, the effect of any actions with respect to one child must keep in mind the potential impact on siblings in the same family. Whenever possible, concerns should be resolved at the earliest possible point using the least adversarial approach and children’s existing relationships with adults they trust should be maintained.
Resources
- Nicholas Bala & Claire Houston, Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada (Department of Justice Canada, 2016) – In-depth review of how children are included in decision-making in multiple legal areas across Canada. See Part H (pages 67 to 70) for discussion of education.
- BC Civil Liberties Association, Rights Talk: Students and Civil Liberties at School (2013) – Guide for young people on their legal rights in BC schools.
- Angela Cameron & Paul Daly, Furthering Substantive Equality Through Administrative Law: Charter Values in Education (2013) 63 Supreme Court Law Review (2d) 169 – Article proposing an administrative law framework for furthering substantive equality in education based on Charter values.
- Child Rights International Network – Website containing a wealth of resources for children’s rights advocacy, including advocacy guides and case summaries.
- Education & Law Journal (published by Carswell; access via Westlaw) – A peer-reviewed journal that focuses specifically on the intersection of law and education in Canada. Note: Not to be confused with similarly titled journals, for example, at Brigham Young University and at the University of South Carolina School of Law.
- Jean-FrĂ©dĂ©ric HĂĽbsch, The Self-Represented Child in School Discipline under Ontario’s Education Act (2020) 7(1) Canadian Journal of Children’s Rights 73 – Article arguing for the recognition of students as individual rights holders in school discipline processes.
- Information and Privacy Commissioner of Ontario, Children and Youth in a Digital World – Resources for children and adults about children’s privacy and information rights.
- Justice for Children and Youth, Enhancing Access to Special Education – Guide for students and caregivers on special education law, policy and procedures in Ontario.
- Justice for Children and Youth, Legal Rights Wiki: Education – Includes information about attendance rights, special education, suspensions, expulsions, and exclusions in Ontario.
- Christine Lee, “Children and Education” in Jeffery Wilson, Wilson on Children and the Law (LexisNexis, 1994–) (access via Quicklaw) – Summary of education law as it related to children.
- Debra Lovinsky, “Child Rights’ Advocacy (Charter of Rights and Freedoms, Convention on the Rights of the Child, parens patriae intervention)” in Jeffery Wilson, Wilson on Children and the Law (LexisNexis, 1994–) (access via Quicklaw) – Overview of children’s rights in Canadian law.
- PREVNet, Bullying Prevention: Facts & Tools for Schools – Guide for educators and administrators on building safe and inclusive schools.
- Right to Education – International human rights organization that promotes education as a human right. Their website includes links to many resources.
- UNICEF, A Human rights-based approach to Education for All: a framework for the realization of children's right to education and rights within education (2007) – Presents key issues and challenges in rights-based approaches in education and provides a framework for policy and program development from the level of the school up to the national and international levels.
- UN Special Rapporteur on the Right to Education, Justiciability of the right to education (10 May 2013) – Highlights jurisprudence at the national, regional and international levels with respect to key dimensions of the right to education.
End Notes
1 Adopted by the Committee at its sixty-second session (14 January – 1 February 2013).