Rights of the Child (6:VI)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 26, 2023. |
In addition to any claim under the federal or provincial codes, various protections exist for children under provincial statutes and the Criminal Code, RSC 1985, c C-46, concerning educational and medical issues.
A. School
1. Compulsory Attendance and Registration
The School Act, RSBC 1996, c 412, states that all children must be enrolled by the first school day of a school year if, on or before December 31 of that school year, the child will have reached the age of 5 years (s 3(1)(a)). Parents may, however, defer enrolment until the first school day of the next school year (i.e. until age 6) (s 3(2)). Once enrolled, children must remain in an educational program until they are 16 (s 3(1)(b)). Whether children attend public or private schools, they must be registered on or before September 30 in each year either with a school or with the Minister of Education (s 13). Students must also comply with the rules, code of conduct, and policies set by the Board of Education or by their particular school (s 6).
Under section 12 of the School Act, parents are authorized to educate their children at home or elsewhere provided they register their children pursuant to section 13.
2. Discipline
Section 43 of the Criminal Code allows a schoolteacher to use discipline that is reasonable in the circumstances. This section refers to the use of reasonable force. The definition of reasonable force is “the substantial social consensus on what is reasonable correction supported by comprehensive and consistent expert evidence on what is reasonable” (Canadian Foundation for Children, Youth and the Law v Canada, 2004 SCC 4 at para 2). However, the School Act specifically states that discipline of a student must be similar to that of a kind, firm, and judicious parent, and must not include corporal (physical) punishment (s 76(3)).
3. Rights of Parents and Students
Students and parents have the right to consult with a teacher or administrative officer (School Act, ss 4 and 7(2)). As well as having the right to information regarding the attendance, behaviour and progress of their children in school (s 7(1)(a)), parents may request an annual report on the general effectiveness of the program their children are enrolled in, without their children’s consent. They are also entitled to belong to a parent’s advisory council (s 7(1)(c)). The councils can be formed by application to the Board or Minister of Education, and can advise the Board and staff of the school (s 8).
4. School Records
Individual students and their parents are entitled to examine, on request, all records pertaining to that student while accompanied by the principal or a person designated by the principal (School Act, s 9). Student records identifying the student will not be released to other parties except when required by law, or if the student or parent consents to the disclosure in writing.
5. Language of Instruction
Every student in BC is entitled to instruction in English (School Act, s 5). However, under section 23 of the Canadian Charter of Rights and Freedoms, students whose parents are citizens of Canada have the right to receive primary and secondary school instruction in either English or French if:
- their parents’ first language is that of the English or French-speaking minority population of the province in which they reside, and their parents still understand that language; or
- their parents received their primary school instruction in Canada in English or French and the parent resides in a province where the language in which they received that instruction is the language of the English or French-speaking minority population of the province.
6. Other Concerns
The School Act states that public schools must be conducted on strictly secular and non-sectarian principles (s 76(1)), meaning they cannot be religiously affiliated. For a case that applies s 76(1) please see Servatius v Alberni School District No. 70, 2022 BCCA 421. In this case, a mother claimed that her children’s school had violated their religious freedom after an elder performed a smudging demonstration, and a hoop dancer said a prayer while performing at the children’s school assembly. The BC Court of Appeal ruled that the demonstrations were not religious ceremonies but public demonstrations for the purposes of building community and teaching students about Indigenous culture, practices recommended by Article 15 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Moore v British Columbia (Education), 2012 SCC 61 at para 36 determined that the BC government had discriminated against a dyslexic boy when it cut the special needs program during a financial crisis. The Supreme Court of Canada found that he was denied a service customarily available to the public. The service denied was meaningful access to education generally, not specific access to a special needs program. Discrimination was found because the cuts disproportionately affected special needs programs and there was no evidence that the BC government considered other options.
Parents are jointly and severally liable for intentional or negligent damage to school property caused by their children (s 10 of the School Act). Please see Nanaimo-Ladysmith School District No. 68 v. Dean 2015 BCSC 11 for an example of parents being held liable for the negligent destruction of school property by their son. In this case, a 14-year-old student attached their friend’s padlock to the head of an overhead sprinkler in their school, which caused the entire sprinkler system to become activated, resulting in extensive damage to the school. Judgement was granted against the parents for $48,630.47 worth of damage.
There is no action against a school board or its employees unless the actionable conduct included dishonesty, gross negligence, malicious or wilful misconduct, or the cause of action is libel or slander (s 94(2)). Note section 94 limits liability, but does not absolve a board from vicarious liability.
Any person who believes a child, whether registered or not, is not enrolled in an educational program can make a report to the superintendent of schools (s 14(1)). An action lies against that person only if the report is made maliciously (s 14(3)).
School boards have a duty to provide an educational environment that is free from discriminatory harassment. This rule was affirmed by the Supreme Court of Canada on October 20, 2005, when it dismissed an application for leave to appeal from a BC Human Rights Tribunal finding of discrimination against a BC school board relating to the homophobic harassment of one of its students (see North Vancouver School District No 44 v Jubran, [2005] SCCA No 260 and North Vancouver School District No 44 v Jubran, 2005 BCCA 201 at paras 91–102). Note that while the student was found to have been discriminated against on the basis of sexual orientation, it was irrelevant whether he identified himself as homosexual, or whether his harassers knew or believed him to be homosexual.
The Ministry of Education has developed the Sexual Orientation and Gender Identity (SOGI) 123 initiative, to guide educators on instruction about sexual orientation and gender identity. The aim of this initiative is to foster inclusion and respect for students who, because of their identity or expression, may face discrimination while attending school. In Hansman v. Neufeld, 2023 SCC 14, the Supreme Court of Canada addressed the conflict between freedom of expression and the protection of one’s reputation in the context of a critique of SOGI. In this case, Mr. Neufeld, a public school board trustee, made controversial online posts criticizing SOGI. Mr. Hansman, a gay man and teacher, was prominent amongst the dissenting voices and made statements to the media regarding his opposition to Mr. Neufeld’s views. Mr. Neufeld subsequently filed a defamation suit against Mr. Hansman. The SCC ruled in favour of Mr. Hansman, writing that “Not only does protecting Mr. Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value” (para 9). In this case, the SCC acknowledged that transgender and other 2SLGBTQ+ youth are especially vulnerable to expression like Mr. Neufeld’s that reduces their “worth and dignity in the eyes of society and questions their very identity” (para 9).
B. Medical Attention
1. Obligation to Provide Treatment
The Criminal Code (s 215) imposes criminal sanctions on parents who fail to provide their children with the necessaries of life until they reach the age of 16. This has been held to include adequate medical treatment, and a court may also extend the duty to an older child who cannot become independent of their parent(s) due to factors including age and illness. Section 218 of the Criminal Code imposes criminal sanctions on any person who abandons or exposes a child less than 10 years of age to the risk of permanent injury, damage to their health, or risk to their life.
Under the Child Family and Community Service Act, RSBC 1996, c 46 (CFCSA), children under the age of 19 may be removed if they are deprived of necessary medical attention, but only by a court order (s 29). When a child is removed, emergency medical care can be given at the director’s authorization (s 32). In cases where the only issue is the parents’ refusal of necessary medical attention, the director can apply for a court order authorizing the medical care without removing the child from the parents’ custody (s 29).
2. Consent to Treatment
In Canadian case law, the courts have found that a minor can consent to treatment as a “mature minor” if that particular person has the mental capacity to understand the nature and risks of that particular treatment (see the Infants Act, RSBC 1996, c 223, s 17). A minor, who is living away from home, working, or married, may be found to be autonomous, and free from parental control, and thus capable of consenting to or refusing treatment on their own behalf.
Under the Infants Act, (s 17), a minor can consent to surgical, medical, mental, or dental treatment without the agreement of their parents, so long as the health care provider has:
- Explained to the minor and has been satisfied that the minor understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care; and
- Has made reasonable efforts to determine and has concluded that the health care is in the minor's best interests. This includes requests for birth control advice and products, and for abortions.
A court of competent jurisdiction may order medical treatment for any child if the court is satisfied that such treatment is required, and that parental consent is being unreasonably withheld. This is part of the inherent parens patriae (guardian of persons under a legal disability) jurisdiction of the Supreme Court and is now codified under section 29 of the CFCSA.
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