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

  1. 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:
    1. Make primary education compulsory and available free to all;
    2. 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;
    3. Make higher education accessible to all on the basis of capacity by every appropriate means;
    4. Make educational and vocational information and guidance available and accessible to all children;
    5. Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
  2. 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.
  3. 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

  1. States Parties agree that the education of the child shall be directed to:
    1. The development of the child's personality, talents and mental and physical abilities to their fullest potential;
    2. The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
    3. 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;
    4. 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;
    5. The development of respect for the natural environment.
  2. 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.

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.

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

Quebec

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

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

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

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.
  • 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

End Notes

1 Adopted by the Committee at its sixty-second session (14 January – 1 February 2013).